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NORTH CAROLINA 

REGISTER 



VOLUME 13 • ISSUE 3 • Pages 261 -352 

August 3, 1998 

IN THIS ISSUE 



vs iioard 

- i!-_.iiigs, Office of 

Public Accountant Examiners 

iDcc Trutessionals 
"Natural Resources 
m Services 



Rules Re \ n 

Contested Case Decisions 



PUBLISHED BY 

The Office of Adminhirativp Hearings 
Rules Division 
PO Drawer 27447 
Raleigh, NC 27611-7447 
Telephone (919) 733-2678 
Fax (919) 733-3462 



Thu nuhn.ijiinn it nrintpj on permanent, acid-free paper in compliance with G.S. 125-11.13 



For those persons that have questions or concerns regarding the Administrative Procedure Act or any of its 
components, consuh with the agencies below. The bolded headings are typical issues which the given 
agency can address, but are not inclusive. 



Rule Notices. Filings. Register, Deadlines, Copies of Proposed Rules, etc. 

Office of Administrative Hearings 

Rules Division ^- 

Capehart-Crocker House (91 9) 733-2678 

424 North Blount Street ^-^' (919) 733-3462MX 

Raleigh, North Carolina 2760 1 -2817 



contact: Molly Masich, Director APA Services 
' * * Ruby Creech, Publications Coordinator 



niniasich@oah.state.nc.us 
rcreech@oah.state.nc.us 



Fiscal Notes & Economic Analysis 

Office of State Budget and Management 

116 West Jones Street 

Raleigh, North Carolina 27603-8005 

contact: Mark Sisak, Economist III 



(919)733-7061 
(919) 733-0640 FAX 

msisak®osbm.state.nc.us 



Rule Review and Legal Issues 

Rules Review Commission 
1 307 Glenwood Ave., Suite 159 
." Raleigh, North Carolina 27605 

contact: Joe DeLuca Jr., Staff Director Counsel 
Bobby Bryan, Staff Attorney 



(919)733-2721 
(919) 733-9415 FAX 



Legislative Process Concerning Rule-making 

Joint Legislative Administrative Procedure Oversight Committee 

545 Legislative Office Building 

300 North Salisbury Street (9 1 9) 733-2578 

Raleigh, North Carojina 27611 (919) 71 5-5460 FAX <, 

contact: Mary Shupidg, Staff Liaison nuiui^s@in;^,ncga.state.p6rl4S 

County and Municipality Government Questions or Notification 

NC Association of County Commissioners 

2 1 5 North Dawson Street (9 1 9) 7 1 5-2893 

Raleigh, North Carolina 27603 

contact: Jim Blackburn or Rebecca Troutman 



NC League of Municipalities 
215 North Dawson Street 
Raleigh, North Carolina 27603 

contact: Paula Thomas 



(919)715-4000 



This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 



NORTH CAROLINA 
REGISTER 




Volume 13, Issue 3 
Pages 261 - 352 



Augusta, 1998 



This issue contains documents officially filed 
through July 13, 1998. 



Office of Administrative Hearings 

Rules Division 

424 North Blount Street (27601 ) 

PO Drawer 27447 

Raleigh. NC 2761 1-7447 

(919)733-2678 

FAX (919) 733-3462 



Julian Mann 111. Director 

Camille Winston. Deputy Director 

Molly Masich, Director of APA Services 

Ruby Creech. Publications Coordinator 

Jean Shirley. Editorial Assistant 

Linda Dupree, Editorial Assistant 



IN THIS ISSUE 

I. IN ADDITION 

Health and Human Services 

COPA 261 

Revenue 
Tax Review Board 262 - 267 

II. RULE-MAKING PROCEEDINGS 
Environment and Natural Resources 

Wildlife Resources Commission 269 

Health and Human Services 
Medical Assistance 268 

Labor 

Boiler and Pressure Vessel Division 269 

Wage and Hour Division 268 - 269 

WORD Division 268 

Licensing Boards 
Certified Public Accountant Examiners .... 269 

III. PROPOSED RULES 
Environment and Natural Resources 

Environmental Management Commission . . . 270 - 302 

Marine Fisheries Commission 303 - 313 

Health and Human Services 

Facility Services 270 

Licensing Boards 

Employee Assistance Professionals 313-315 

IV. TEMPORARY RULES 
Environment and Natural Resources 

Health Services Commission 325 - 333 

Health and Human Services 

Medical Assistance 316 - 320 

Social Services 320 - 323 

Insurance 

Life and Health Division 323-325 

V. APPROVED RULES 334-336 

Administrative Hearings, Office of 

General 
Health and Human Services 

Social Services 
Justice 

Private Protective Services Board 

Sheriffs' Education and Training Standards 
Licensing Boards 

Cosmetic Art Examiners 
Revenue 

Individual Income Tax Division 

Motor Fuels Tax Division 

VI. RULES REVIEW COMMISSION 337-339 

VIL CONTESTED CASE DECISIONS 

Index to ALJ Decisions 340 - 342 

Text of Selected Decisions 

97OSP1018 343-349 

98 ABC 0382 350-352 

VIII. CUMULATIVE INDEX 1-49 



.\orrh Carolina Register is published semi-monthl\ for S195 per year b\ the Office of Administrative Hearings. 424 North Blount Street. Raleigh. NC 
27601. (ISSN 15200604) to mail at Periodicals Rates is paid at Raleigh. NC. POSTMASTER: Send Address changes to the Xorili Carolina Register, 
PO Drawer 27447. Ralemh. NC 2761 1-7447. 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



The North Carolina Administrative Code fSCACj has four major subdivisions of rules. Two of these, titles and chapters, 
are mandatory. The major subdivision of the NCAC is the title. Each major department in the North Carolina executive 
branch of government has been assigned a title number. Titles are further broken down into chapters which shall be 
numerical in order. The other two. subchapters and sections are optional subdivisions to be used by agencies when 
appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 



TITLE 



DEPARTMENT 



LICENSING BOARDS 



CHAPTER 



1 


Administration 


Acupuncture 


1 


-) 


Agriculture 


Architecture 


2 


3 


Auditor 


Athletic Trainer Examiners 


3 


4 


Commerce 


Auctioneers 


4 


5 


Correction 


Barber Examiners 


6 


6 


Council of State 


Certified Public Accountant Examiners 


8 


7 


Cultural Resources 


Chiropractic Examiners 


10 


8 


Elections 


Emplo\ee Assistance Professionals 


11 


9 


Go\emor 


General Contractors 


12 


10 


Health and Human Sen ices 


Cosmetic Art Examiners 


14 


11 


Insurance 


Dental Examiners 


16 


12 


Justice 


Dietetics 'Nutrition 


17 


13 


Labor 


Electrical Contractors 


18 


14A 


Crime Control & Public Safet> 


Electrol\sis 


19 


15A 


En\ironment and Natural 


Foresters 


20 




Resources 


Geologists 


21 


16 


Public Education 


Hearing Aid Dealers and Fitters 


T) 


17 


Revenue 


Landscape Architects 


26 


18 


Secretap. of State 


Landscape Contractors 


28 


19A 


Transportation 


Marital and Famil> Therapy 


31 


20 


Treasurer 


Medical Examiners 


"?"* 


•21 


Occupational Licensing Boards 


Midwifen, Joint Committee 


33 


")-) 


Administrative Procedures 


Mortuar. Science 


34 


23 


Community Colleges 


Nursing 


36 


24 


Independent Agencies 


Nursing Home Administrators 


37 


25 


State Personnel 


Occupational Therapists 


38 


26 


Administratis e Hearings 


Opticians 


40 


T7 


NC State Bar 


Optometp. 


42 






Osteopathic Examination &. Reg. (Repealed) 


44 






Pastoral Counselors. Fee-Based Practicing 


45 






Pharmac) 


46 






PhNsical Therapx Examiners 


48 






Plumbing. Heating & Fire Sprinkler Contractors 


50 






Podiatp. Examiners 


52 






Professional Counselors 


53 






Psycholog\ Board 


54 






Professional Engineers &. Land Sur\e>ors 


56 






Real Estate .Appraisal Board 


57 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work Certification 


63 






Soil Scientists 


69 






Speech & Language Pathologists & .Audiologists 


64 






Substance .Abuse Professionals 


68 






Therapeutic Recreation Certification 


65 






Veterinar\ Medical Board 


66 



Note: Title 21 contains the chapters of the \arious occupational Hcensing boards. 



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IN ADDITION 



This Section contains public notices that are required to be published in the Register or have been 
approved by the Codijier of Rules for publication. 



DEPARTMENT OF HEALTH AND HUMAN SERVICES 
DIVISION OF FACILITY SERVICES 

Notice is hereby given that Memorial Mission Hospital, Inc. and St. Joseph's Hospital, holders of a Certificate of Public Advantage 
(COPA) issued by the Department of Health and Human Services with the consent of the North Carolina Attorney General pursuant 
to N.C. Gen. Stat. §13 IE- 192. 5 on December 21, 1995, have petitioned to amend the COPA. 

The amendment would reflect a proposed merger of St. Joseph's Hospital with and into Memorial Mission Hospital and the merger 
of Mission-St. Joseph's Health System, Inc. with and into Memorial Mission's parent. Memorial Mission Medical Center, Inc. 

The Department and the Attorney General will receive written comments on the proposed amendment through August 31, 1998. 
Comments may be addressed to: 

Mr Robert J. Fitzgerald 

Deputy Director 

Division of Facility Services 

N.C. Department of Health and Human Services 

Post Office Box 29530 

Raleigh, North Carolina 27626-0530 

OR 

Mr Kip D. Sturgis 

Assistant Attorney General 

N. C. Department of Justice 

Post Office Box 629 

Raleigh. North Carolina 27602-0629 

Notice is hereby given that pursuant to N.C. Gen. Stat. §13 IE- 192. 9 the Department of Health and Human Services has received 
a Periodic Report from Memorial Mission Hospital. Inc. and St. Joseph's Hospital. The Periodic Report is required by the statute 
from holders ofa Certificate of Public Advantage (COPA). The Hospitals hold a COPA issued December 21. 1995 by the Department 
of Health and Human Services with the consent of the Attorney General. 

Written comments on the report and on the benefits and disadvantages of continuing the COPA will be received through August 
31, 1998, and should be addressed to: 

Mr Robert J. Fitzgerald 

Deputy Director 

Division of Facility Services 

N.C. Department of Health and Human Services 

Post office Box 29530 

Raleigh, North Carolina 27626-0530 

OR 

Mr. Kip D. Sturgis 

Assistant Attorney General 

N. C. Department of Justice 

Post Office Box 629 

Raleigh. North Carolina 27602-0629 



NORTH CAROLINA REGISTER Aueust 3. I99S 



^^mi 



IN ADDITION 



STATE OF NORTH CAROLINA 
COUNTS' OF WAKE 



BEFORE THE 
TAX RE\1EW BOARD 



IN THE MATTER OF: 

The Proposed Assessments of Additional High\va> Use Tax 

for the period of June 1. 1 903 through Februan. 28. IQO?. 

b\ the Secretar\ of Revenue \s. Dail_\ Car Rental. Inc. Taxpayer 



ADMIMSTR\TI\ E 
DECISION NUMBER: 346 



This matter was heard before the Tax Re\'ieu Board in the cit> of Raleigh, on April 28. 1 998. upon Taxpa\er"s petition for 
administrative review of the Final Decision of the Secretarv of Revenue sustaining a proposed assessment of alternate highvvav use 
tax for the period of June 1. 1993. through Februan. 28. 1997. Taxpayer was presented at the hearing bv E. Cader Howard. Edwin 
P. Friedberg. and Nancv Krolikow ski. Attomev s at Law, The Secretan. of Rev enue v\ as represented at the hearing b\ George W. 
Bovlan. Special Deput> Attomev General. 

Chairman Harlan E. Bo> les. State Treasurer presided over the hearing with Jo Anne Sanford. Chair. Utilities Commission 
and dulv- appointed member. Noel L. Allen. Attomev at Law participating. 

Pursuant to G.S. 105-241.1. Notice of Motor Vehicle Lease-Audit Tax Assessment for the period of June 1. 1993 through 
FebruarN 28. 1997. was mailed to Taxpaver on April 9. 1997. assessing highvvav use tax. plus penalties and interest. Taxpaver 
objected to the assessment and timely requested a hearing before the Secretary of Revenue. By final decision entered on December 
22. 1997. the Assistant Secretan. modified the assessment against the Taxpaver for the period of June 1. 1993. through February 28. 
1997. The Assistant Secretan. determined that on the general ledger accounts. Taxpaver described the amounts collected from its 
customers bv various terms, including "sales tax pavable." "sales tax pavable surcharge" "surcharge." "tax surcharge." "revenue 
surcharge." and "sales tax surcharge." The .Assistant Secretan. concluded that all entries classified as "sales tax pavable" or "sales 
tax pavable surcharge" represented collections of tax and sustained the assessments to that extent. The remainder of the assessments 
was vacated. Accordinglv. the amount of the actual proposed assessment was reduced from approximatelv S59.000 to S24.000. 
Pursuant to G.S. 105-241.2. Taxpaver timelv filed notice and petition for administrative review of the .Assistant Secretan, "s final 
decision with the Tax Review Board. 



ISSUE 



The issue to be decided in this matter is as follows: 



follows: 



Did the Secretan. of Revenue properlv sustain the assessment for over collected highvvav use tax? 

EVIDENCE 
The evidence presented at hearing before the Secretan. of Revenue and included in the record presented to the Board is as 

Face sheet of auditor's report and audit comments dated March 20. 1997. designated as Exhibit E-1. 

Notice of Motor Vehicle Lease-.Audit Tax Assessment dated April 9. 1997. designated as Exhibit E-2. 

Rental agreements and customer invoices, designated as Exhibit E-3. 

Ledger sheet from taxpaver's records, designated as Exhibit E-4. 

Letter dated April 17. 1997. and attachments from taxpaver's attomev- to Secretan.- of Revenue, designated as Exhibit E-5. 

Letter dated Mav 27. 1997. from Sales and Use Tax Division to taxpaver's attomev. designated as Exhibit E-6. 

Letter dated Mav 30. 1997. fi"om taxpaver's attomev to Sales and Use Tax Division, designated as Exhibit E-7. 

Letter dated June 19. 1997. from the Assistant Secretan. for Legal and Financial Services to taxpaver's attomev. designated 

as Exhibit E-8. 



262 



NORTH CAROLINA REGISTER 



Ausust 3. 1998 



m 



INADDITION 



9. Memorandum dated April 18, 1996, designated as Exhibit E-9. 

1 0. Brief for Tax Hearing, designated as Exhibit E- 1 0. 

1 1 . Taxpayer's Exhibits A through I, designated as Exhibit TP-1 . 

12. Letter dated September 22, 1997, from taxpayer's attorney to the Assistant Secretar>' and attachments, designated as Exhibit 
TP-2. 

FINDINGS OF FACT 

The Board considered the following findings of fact made by the Assistant Secretary in determining its decision: 

1 . Taxpayer is a corporation engaged in the business of renting motor vehicles on a short-term basis and is also a designated 
agent for Ryder Truck Rental. 

2. The Highway Use Tax Act allows a motor vehicle lessor to pay the highway use tax on a motor vehicle held for lease or 
rental when applying for a certificate of title or collect and remit the alternate highway use tax on the gross receipts of the 
lease or rental. 

3. Taxpayer paid the highway use tax to the North Carolina Division of Motor Vehicles when applying for certificates of title. 

4. Under paragraph 12. D of its rental agreement, taxpayer charged its lessees amounts equal to the rate of the North Carolina 
highway use tax applicable to short-term rentals of motor vehicles but did not remit the amounts to the Department. 

5. Taxpayer denominates the amounts charged its lessees under paragraph 12. D as taxes. 

6. In taxpayer's general ledger accounts, supporting schedules refer to these amounts by various terms such as "surcharge," 
"sales tax," and "sales tax payable." 

7. G.S. 105-187.5 requires the Secretar\' of Revenue to administer the alternate highway use tax in the same manner as the sales 
tax levied on leases or other tangible personal property. 

8. 105-164.11 provides that a tax erroneously collected on exempt of nontaxable sales (rentals) shall be remitted to the 
Secretary and shall be refunded to the taxpayer onl\ if the purchaser (lessee) has received credit for or a refund of such tax. 

9. Taxpayer did not remit to its purchasers (lessees) any of the amounts collected by it as surcharges, sales tax, etc. 

CONCLUSIONS OF LAW 

The Board considered the following conclusions of law made by the Assistant Secretary in the final decision: 

1 . Taxpayer was at all relevant times a lessor of motor vehicles. 

2. Amounts collected from customers designated as "Sales Tax Payable" or "Sales Tax Payable Surcharge" constitute erroneous 
collections of tax and must be remitted to the Department. 

3. Amounts collected from customers designated as "Surcharge," "Tax Surcharge" "Revenue Surcharge," "Sales Tax," or "Sales 
Tax Surcharge" to the extent consistentK documented as such for accounting purposes upon taxpayer's books and records 
constitute reimbursement of tax paid and are not erroneous collections. 

DECISION 

The scope of administrative review for petitions filed with the Tax Review Board is governed by G.S. 1 05-24 1.2(b2). After 
the Board conducts a hearing this statute provides in pertinent part: 

(b2). "The Board shall confirm, modify', reverse, reduce or 
increase the assessment or decision of the Secretary." 

The Board having conducted a hearing in this matter and having considered the petition, the briefs, the record and the final 
decision of the Assistant Secretary, concludes that the fmdings of fact made by the Assistant Secretary were supported by competent 
evidence in the record: that based upon the findings of fact, the Assistant Secretary's conclusions of law were fully supported by the 
findings of fact: therefore the decision of the Assistant Secretary should be confirmed. 

IT IS THEREFORE ORDERED, that the Board confirms in ever> respect the Assistant Secretary 's final decision in this 
manner for the period of June 1, 1993, through February 28, 1997. 



^^^^mmmmma^mm^^^^^^^^M 



IN ADDITION 



Made and entered into this 24th da\ of June, 1998. 

TAX REVIEW BOARD 

s/Harian E. Boyies. Chairman 
State Treasurer 



s/Jo Anne Sanford 

Chair, Utilities Commission 



s/Noel L. Allen, Appointed Member 



\ORTH CAROLINA REGISTER August 3. 1998 13:3 



]^n^^RQU^^EGI^^^^^^^^Au8us^ 



IN ADDITION 



STATE OF NORTH CAROLINA BEFORE THE 

TAX REVIEW BOARD 



COUNTY OF WAKE 



IN THE MATTER OF: ADMINISTRATIVE 

DECISION Number: 3£7 

The Proposed Assessments of Additional Income Tax 
for the Taxable Years 1993, 1994, and 1995 by the Secretary 
of Revenue of North Carolina vs. Frederick E. and Irene R. 
Adams. Taxpayers 



This matter was heard before the Tax Review Board in the city of Raleigh, on April 28, 1998, upon Taxpayers" petition for 
administrative review of the Final Decision of the Secretary of Revenue sustaining the assessment of additional tax, including penalty 
and interest, assessed against them for tax years 1993, 1994, and 1995. Taxpayer appeared at the hearing pro se. Marilyn R. Mudge, 
Assistant Attorney General appeared at the hearing on behalf of the Secretary of Revenue. 

Chairman Harlan E. Boyles, State Treasurer presided over the hearing with Jo Anne Sanford, Chair, Utilities Commission 
and duly appointed member, Noel L. Allen, Attorney at Law participating. 

Pursuant to G.S. 1 05-24 1.1. Notices of Individual Income Tax Assessment for tax years 1993, 1994, and 1995 were mailed 
to Taxpayers on December 30, 1996, assessing additional income tax, a ten percent late-payment penalty, and accrued interest. For 
the tax years 1994, and 1995, a penalty was also assessed for the underpayment of estimated income tax. The assessments resulted 
from the auditor disallowing tax credits for the tax years 1993, 1994, and 1995, in the amounts of $1,000, $1,000 and $500, 
respectively, claimed by Taxpayers on their income tax returns for solar heating, cooling, and hot water system. Taxpayers objected 
to the assessments and timely requested a hearing before the Secretary of Revenue. By final decision entered on July 23, 1997, the 
Assistant Secretary sustained the assessments against the Taxpayers for the tax years 1993, 1994, and 1995. Pursuant to G.S. 105- 
241.2, Taxpayers timely filed notice and petition for administrative review of the Assistant Secretary's final decision with the Tax 
Review Board. 

ISSUE 

The issue to be decided in this matter is as follows: 

Were the solar credits claimed on Taxpayers' 1993, 1994, and 1995 individual income tax returns properly disallowed? 

EVIDENCE 

The evidence presented at hearing before the Secretary of Revenue and included in the record presented to the Board is as 
follows: 

1 . Memorandum dated April 18, 1996, fi^om the Secretary of Revenue to the Assistant Secretary of Revenue, designated as Exhibit 
PT-1. 

2. Taxpayers" North Carolina individual income tax return for the taxable year 1990, designated as Exhibit PT-2. 
3, 
4 
5 
6 
7 



Taxpayers' North Carolina individual income tax return for the taxable year 1991. designated as Exhibit PT-3. 
Taxpayers" North Carolina individual income tax return for the taxable year 1992, designated as Exhibit PT-4. 
Taxpayers" North Carolina individual income tax return for the taxable year 1993, designated as Exhibit PT-5. 
Taxpayers" North Carolina individual income tax return for the taxable year 1994, designated as Exhibit PT-6. 
Taxpayers" North Carolina individual income tax return for the taxable year 1995, designated as Exhibit PT-7. 
Notice of Individual Income Tax Assessment for the taxable year 1993. dated December 30. 1996, designated as Exhibit PT-8. 

9. Notice of Individual Income Tax Assessment for the taxable year 1994. dated December 30, 1996. designated as Exhibit PT-9. 

10. Notice of Individual Income Tax Assessment for the taxable year 1995, dated December 30, 1996, designated as Exhibit PT-10. 



JIl^^^^^^^NO^^^RQUN^EGISTE^^^Aueus^^99^^^^^^^^^^^^^^^265 



IN ADDITION 



1 1 . Title 1 7, North Carolina Administrative Code. Subchapter 6B, Rule .0605, designated as Exhibit PT-1 1 . 

12. Letter from Manager of Office Examination Division to Taxpayers dated December 30, 1996, designated as Exhibit PT-1 2. 

13. Undated letter from Taxpayer to Manager of Office Examination Division, designated as Exhibit PT-13. 

14. Letter from Caroline A. Smith to Taxpayers dated February 12, 1997, designated as Exhibit PT-14. 

15. File Note from Carolina A. Smith dated February 19. 1997. designated as Exhibit PT-15. 

16. Letter from Assistant Secretary to Taxpayers dated February 21, 1997, designated as Exhibit PT-1 6. 

17. Taxpayers" North Carolina individual income tax return for taxable year 1989, designated as Exhibit PT-1 7. 

18. Letter from Michael A. Hannah to Taxpayers dated April 2, 1997, designated as Exhibit PT-18. 

FINDINGS OF FACT 

The Board considered the following findings of fact made by the Assistant Secretary in determining its decision: 

1. Taxpayers timely filed their joint individual income tax returns for the taxable years 1989, 1990, 1991, 1992, 1993, 1994, and 
1995. 

2. Taxpayers claimed an income tax credit of $1,000 for a solar heating, cooling or hot water system on their income tax returns 
for the tax years 1989 through 1994. On their 1995 return, they claimed an income tax credit of $500 for a solar heating, cooling 
or hot water system. 

3. TheauditordisallowedtaxcreditsofSKOOO, $1,000. and $500 for the tax years of 1993. 1994,and 1995. The Department of 
Revenue is prevented by the statute of limitations from disallowing the tax credits claimed by the Taxpayers on their income tax 
returns for tax years 1990, 1991, and 1992. 

4. Taxpayers were allowed the solar energy tax credit of $ 1 .000 claimed on their 1 989 income tax return. 

CONCLUSIONS OF LAW 

The Board considered the following conclusions of law made by the Assistant Secretary in the final decision: 

1. A tax credit is allowed to an individual who constructs or installs a solar heating, cooling, or hot water system in a building 
located in North Carolina which the taxpayer owns or controls. The credit is limited to twenty-five percent of the cost of the 
system, up to a maximum credit of $1,000 per system or per year on any single building or for each family unit of a multi- 
dwelling which is individualK metered for electric power or natural gas or with a separate furnace for oil heat paid h\ an 
occupant. If the credit exceeds the tax due by all other credits, any unused credit may be carried over for up to three succeeding 
years. 

2. Taxpayers were allowed the maximum solar energy tax credit of $1,000 on their 1989 individual income tax return; therefore, 
there is no solar energ\ tax credit to be carried over to the tax years 1990 through 1995. 

DECISION 

The scope of administrative review for petitions filed with the Tax Review Board is governed by G.S. 105-241 .2(b2). After 
the Board conducts a hearing this statute provides in pertinent part: 

(b2). "The Board shall confirm, modify', reverse, reduce or 
increase the assessment or decision of the Secretary." 

G.S. 105-151.2 allows a tax credit equal to 25°b of the cost of installing a solar hot water, heating, or cooling system, 
"provided that the credit allowed under this section may not exceed one thousand dollars ($1,000) per system or per year on 
any single building or for each family dwelling unit of a multi-dwelling building . . ." (Emphasis added). The Taxpayers were allowed 
a total credit of $1 .000 as provided for under the statute. Taxpayers were not entitled to the tax credits claimed on their individual 
income tax returns for 1993, 1994, and 1995. 

The Board having conducted a hearing in this matter and having considered the petition, the Secretary's brief, the record and 
the fmal decision of Assistant Secretary, concludes that there exist sufficient evidence in the record, to confirm the Assistant 
Secretary's decision as to the assessment of additional income tax and interest assessed against the Taxpayers for tax years 1993. 
1994, 1995: however the Board reverses the Assistant Secretary's decision regarding the penalty imposed against the Taxpayers for 
taxvears 1993, 1994, and 1995. 



NORTH CAROLINA REGISTER Ausitst 3. 1998 13: 



26^^^^^^^NOR 



IN ADDITION 



IT IS THEREFORE ORDERED, that the Board confirms the Assistant Secretary's final decision as to the assessment 
of additional income tax and interest assessed against the Taxpayers for tax years 1993. 1994, and 1995. The Board reverses the 
Assistant Secretary's final decision concerning the penalty imposed against the Taxpayers and orders that the final decision be 
modified accordingly. 



Made and entered into this 24th dav of June, 1998. 



TAX REVIEW BOARD 

s/Harlan E. Boyles, Chairman 
State Treasurer 

s/Jo Anne San ford 

Chair, Utilities Commission 

s/Noel L. Allen, Appointed member 



13:3 NORTH CAROLINA REGISTER Aueust 3, 1998 267 



RULE-MAKING PROCEEDINGS 



A Sotice o/ Rule-mukiiii^ Proceedings is a statement of subject matter of the agency's proposed rule making. The agency must 
publish a notice of the subject matter for public comment at least 60 days prior to publishing the proposed text of a rule. 
Publication of a temporary rule serves as a Notice of Rule-making Proceedings and can be found in the Register under the 
section heading ofTemporaiy Rules. .4 Rule-making Agenda published by an agency sen'es as Rule-tnaking Proceedings and 
can be found in the Register under the section heading of Rule-making .Agendas. Statutory reference/ G.S. I50B-21.2. 



TITLE 10 - DEPARTMENT OF HEALTH 
AND HUMAN SERVICES 



as a result of this notice of rule-making proceedings and any 
comments received on this notice. 



CHAPTER 50 - MEDICAL ASSISTANCE 

SUBCHAPTER 50B - ELIGIBILITY 
DETERMINATION 

A Totice of Rule-making Proceedings is hereby given by the 
1 V DhlHS - Division of Medical Assistance in accordattce with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Resister the text of the rulefs) it proposes to adopt as a result of 
this notice of rule-making proceedings and any comtnents 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 10 

NC.4C SOB .031 1. Other rules may be proposed in the course 
of the rule-making process. 



Citation to Existing Rules Affected by this Rule-Making: No 

rules presently exist. New rules will be proposed. Other rules 
may be proposed in the course of the rule-making process. 

Authority for the rule-making: G.S. 95-242 

Statement of the Subject Matter: .Adoption of rules for the 
enforcentent of Article 21 of Chapter 95 of the North Carolina 
General Statutes. 

Reason for Proposed Action: To adopt a set of guidelines for 
the initiation, processing, and closing of complaints filed 
pursuant to the Retaliatory Employment Discrimination Act. 
found at Article 21 of Chapter 95 of the North Carolina General 
Statutes. 



Authority for the rule-making: G.S. I08A-54: 108A-55: 
lOH.A-58: 42 C.F.R. 435.121: 42 C.F.R. 435.210: 42 C.F.R. 
435.711: 42 C.F.R. 435.712: 42 CFR. 435.734: 42 C.FR. 
435.823: 42 C.FR. 435.840: 42 C.FR. 435.841: 42 C.FR. 
435.845: 42 C.FR. 445.850: 42 C.FR. 435.851: 45 C.FR. 
233.20: 45 CFR. 233.51: 42 U.S.C 703. 704 1396 

Statement of the Subject Matter: To be eligible under some 
Medicaid coverage groups, an individual must have countable 
resources that do not exceed the reserve limit for that group. 
This Rule describes what are countable resources. 

Reason for Proposed Action: In part, the rule allows for 
excluding from countable resources those resources that are 
owned by a person who is incompetent arid for whom there is no 
individual with legal authority to access the resources on behalf 
of the incompetent person. The amendment will clarify and 
further define when an individual's resources are excluded 
because he is alleged to be incompetent. 



Comment Procedures: Written comments must be delivered or 
mailed to Ranee S. Sandy. North Carolina Department of Labor 
4 West Edenton Street. Raleigh. NC 27601-1092. 



•X y; -K fr •)< -K 



•xye-Kyt-x^-x-K-K-K'Tfft 



CHAPTER 12 - WAGE AND HOUR 

A Totice of Rule-making Proceedings is hereby given by the 

1 V North Carolina Department of Labor. Wage and How- 
Division in accordance with G.S. 150B-21.2. The agency shall 
subsequently publish in the Register the text of the rulefs) it 
proposes to adopt as a result of this notice of rule-making 
proceedings and any comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 13 

NCAC 12 .0101. .0303 - .030'. .05o'l - .0502. .0801 - .0802. 
Other rules may be proposed in the course of the rule-making 
process. 



Comment Procedures: Written comments concerning this 
rule-making action must he submitted to Portia W. Rochelle. 
Rule-making Coordinator Division of Medical .Assistance. 1985 
Lmstead Drive. Raleigh. NC 2'603. 



TITLE 13 - DEPARTMENT OF LABOR 

TV Totice of Rule-making Proceedings is hereby given by the 

J. V North Carolina Department of Labor. WORD Division in 
accordance with G. S. 150B-2 1.2. The agency shall subsequently 
publish in the Resister the text of the rule(s) it proposes to adopt 



Authority for the rule-making: G.S. 95-25.19 

Statement of the Subject Matter: Rules regarding the 
enforcement of the Wage and Hour .Act. 

Reason for Proposed Action: To update the Wage and Hour 
regulations. .As part of the process of revising these Rules, the 
Department proposes a rearrangement of the rule numbers in 
certain sections to clarify the rules. 

Comment Procedures: Written comments must be delivered or 
mailed to Ranee S. Sandy. North Carolina Department of Labor 



26S 



NORTH CAROLINA REGISTER 



Ausust3. 1998 



13:3 



R ULE-MAKING PROCEEDINGS 



4 West Edenton Street, Raleigh. NC 27601-1092. 



Creek, Morehead Citv, Carteret County 



******************** 

CHAPTER 13 - BOILER AND PRESSURE 
VESSEL 

A Totice of Rule-making Proceedings is hereby given by the 
1 y North Carolina Department of Labor. Boiler and Pressure 
Vessel Division in accordance with G.S. 150B-21.2. The agency 
shall subsequently publish in the Register the text of the rule(s) 
it proposes to adopt as a result of this notice of rule-making 
proceedings and any comments received on this notice. 

Citation to Existing Rules AfTected by this Rule-Making: 13 

NCAC 13 in its entirety. Other rules may be proposed in the 
course of the rule-making process. 

Authority for the rule-making: G.S. 95-69.14 

Statement of the Subject Matter: Boiler and pressure vessel 
rules regarding administration of the Division, enforcement of 
standards, and general requirements for the operation of boilers 
and pressure vessels. 

Reason for Proposed Action: To update and clarify' the 
administrative rules regarding the Uniform Boiler and Pressure 
Vessel Act. 



Reason for Proposed Action: The Town of Morehead City 
initiated the no-wake zone pursuant to G.S. 75A-15 to protect 
public safety in the area by restricting vessel speed. The 
Wildlife Resources Commission may adopt this Rule as a 
temporary rule pursuant to S.L. 1997-0403 following this 
abbreviated notice. 

Comment Procedures: The record will be open for receipt of 
written comments from August 3, 1998 to October 4, 1998. Such 
written comments must be delivered or mailed to the North 
Carolina Wildlife Resources Commission, 512 N. Salisbury 
Street, Raleigh, NC 27604-1188. 



TITLE 21 - OCCUPATIONAL LICENSING 
BOARDS 

CHAPTER 8 - BOARD OF CERTIFIED 
PUBLIC ACCOUNTANT EXAMINERS 

TV Totice of Rule-making Proceedings is hereby given by the 
1 V North Carolina State Board of CPA Examiners in 
accordance with G.S. 150B-21.2. The agency shall subsequently 
publish in the Resister the text of the rule(s) it proposes to adopt 
as a result of this notice of rule-making proceedings and any 
comments received on this notice. 



Comment Procedures: Written comments must be delivered or 
mailed to Ranee S. Sandy, North Carolina Department of Labor 
4 West Edenton Street, Raleigh, NC 27601-1092. 



TITLE 15A - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 

CHAPTER 10 - WILDLIFE RESOURCES 
AND WATER SAFETY 

SUBCHAPTER lOF - MOTORBOATS AND 
WATER SAFETY 

A Totice of Rule-making Proceedings is hereby given by the 
J. V North Carolina Wildlife Resources Commission in 
accordance with G.S. 150B-21.2. The agency shall subsequently 
publish in the Register the text of the rule(s) it proposes to adopt 
as a result of this notice of rule-making proceedings and any 
comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC lOF .0330. Other rules may be proposed in the 
course of the rule-making process. 

Authority for the rule-making: G.S. 75A-3: 75A-15 

Statement of the Subject Matter: No Wake Zone - Spooners 



Citation to Existing Rules AfTected by this Rule-Making: 21 

NCAC 8A .0301, .0310: 8H .0001: 8J .0002, .0007 - .0008, 
.0010 - .0011: 8K .0104: 8M: 8N .0208. .0302 - .0303, and 
.0307. Other rules may be proposed in the course of the rule- 
making process. 

Authority for the rule-making: G.S 55B: 57C: 59: 93-1: 93- 

3: 93-4: 93-12(2): 93-12(5): 93-12(6): 93-12(7a): 93-12(8a): 
93-1 2(8b): 93-1 2(8c): 93-12(9) 

Statement of the Subject Matter: The NC State Board of CPA 
Examiners proposes to amend and adopt rules relevant to 
reciprocal certification, firm registration and ownership, 
professional ethics and conduct, and definitions, as needed. 

Reason for Proposed Action: To amend and adopt language 
resulting from the amended Uniform Accountancy Act, which is 
a document that the Board uses as guidance to reflect current 
protection of the public and uniform regulation of its licensees. 

Comment Procedures: Any person interested in these Rules 
may submit comments within 60 days of the date of this 
publication by mailing the comments to Robert N. Brooks, 
Executive Director. NC State Board of CPA Examiners, PO Box 
1282 7, Raleigh, NC 2 7605-282 7. 



M 



NORTH CAROLINA REGISTER 



MHHM 



998 



PROPOSED RULES 



This Section coniains the text of proposed rules. At least 60 days prior to the publication of text, the agency published a 
Notice of Rule-making Proceedings. The agency must accept comments on the proposed rule for at least 30 days from the 
publication date, or until the public hearing, or a later date if specified in the notice by the agency. The required comment 
period is 60 days for a rule that has a substantial economic impact of at least five million dollars (S5. 000. 000). Statutory 
reference: G.S 150B-21.2. 



TITLE 10 - DEPARTMENT OF HEALTH 
AND HUMAN SERVICES 

Notice is hereby given in accordance with G.S. 150B-2L2 
that the Division of Facility Services intends to amend rule 
cited as 10 NCAC 3R .0214. Notice of Rule-making 
Proceedings was published in the Register on October 15. 199~. 

Proposed Effective Date: April 1. 1999 

A Public Hearing will be conducted at 2:00 p.m. on September 
14. 1998 at the Council Building. "01 Barbour Drive, Room 
20 f Raleigh. NC 27603. 

Reason for Proposed Action: The rule was the subject of a 
contested case and is being changed based on the Agency's 
conclusions in that case. 

Comment Procedures: Persons interested in the rule are 
invited to attend the public hearing and make oral comments or 
submit written comments. The deadline for submission of all 
written comments is 5:00 p.m. on September 14. 1998. Written 
comments should be submitted to Jackie Sheppard. Rule-making 
Coordinator. Division of Facility Services. PO Box 29530. 
Raleigh. NC 2-626-0530. Telephone: 9 19-- 3 3-2342. 

Fiscal Note: This Rule does not affect the expenditures or 
revenues of state or local government funds. This Rule does not 
have a substantial economic impact of at least Jive million 
dollars lS5.000.000l in a 12-month period. 

CHAPTER 3 - FACILITY SERVICES 

SUBCHAPTER 3R - CERTIFICATE OF 
NEED REGULATIONS 

SECTION .0200 - EXEMPTIONS 



(1) it has the same basic technology as the equipment 
currentlN in use. although it may possess expanded 
capabilities due to technological improvements; and 

(2) it is functionalK similar and is used for the same 
diagnostic or treatment purposes as the equipment 
currently in use and is not used to provide a new 
health service; and 

(3) the acquisition of the equipment does not result in 
more than a 10% increase in patient charges or per 
procedure operating expenses within the first twelve 
months after the replacement equipment is acquir e d; 
and acquired. 

f44 it \sill b e locat e d on th e sam e sit e or campus as th e 

e quipm e nt curr e ntK in u se . 
(e) Replacement equipment is not comparable to the 
equipment being replaced if; 

(1) the replacement equipment is new or reconditioned, 
the existing equipment %\ as purchased second-hand, 
and the replacement equipment is purchased less than 
three years after the acquisition of the existing 
equipment; or 

(2) the replacement equipment is new. the existing 
equipment was reconditioned when purchased, and 
the replacement equipment is purchased less than 
three >ears after the acquisition of the existing 
equipment; or 

{¥) — the r e plac e m e nt e quipm e nt i s p e rman e ntK fix e d 
e quipm e nt and th e e xisting equipment is on e a pi e c e 
of mobil e e quipm e nt which i s s hared betw ee n rv i o or 
mor e faciliti e s.; or 

f4-K3) the replacement equipment is capable of performing 
procedures that could result in the pro\ision of a new 
health service or type of procedure that has not been 
provided with the existing equipment; or 

(#){4J the replacement equipment is purchased and the 
existing equipment is leased, unless the lease is a 
capital lease. 



.0214 REPLACEMENT EQUIPMENT 

(a) The purpose of this Rule is to define the terms used in the 
definition of "replacement equipment" set forth in G.S. 13 lE- 
176(22a). 

(b) "Activities essential to acquiring and making operational 
the replacement equipment" means those activities which are 
indispensable and requisite, absent which the replacement 
equipment could not be acquired or made operational. 

(c) "Comparable medical equipment" means equipment which 
is functionalK similar and which is used for the same diagnostic 
or treatment purposes. 

(d) Replacement equipment is comparable to the equipment 
being replaced if 



.Authority- G.S. 131E-1--(1). 



TITLE ISA - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 

TV Totice is hereby given in accordance with G.S. 150B-21.2 
1 V that the DENR - Emironmental Management Commission 
intends to. amend rules cited as 15A NCAC 2D .0405. .0409. 
.0503 - .0504. .1201 - .1206. .1208 -.1209. .1601: 2Q .0102 - 
.0103. .010-. .0304. .0306. .0309. .0401 - .0402, .0801. .0803: 
adopt rules cited as 15A NCAC 2D .0410. .2001 - .2005: 20 
.0314 -.0315. .0808: and repeal rules cited as 15A NCAC 2D 



'70 



SORTH C.4ROLIX4 REGISTER 



AususrJ. 1998 



13:3 



PROPOSED RULES 



.1501 -.1504: 2Q. 0511. 

Notice of Rule-making Proceedings was published in the 

Register on: 15A NCAC 2D .0503 - .0504 - March 15. 1996: 

15A NCAC 2D . 1500 - January- 2. 1997: 15A NCAC 2Q .0304. 

.0306. .0309, .0314 - April 15. 1997: 15A NCAC 2Q .0102, 

.0801.. 0803 -July 15. 1997: 

15A NCAC 2Q,0401 - .0402 - August 15, 1997: 15A NCAC 2D 

.0405, .0409 - .0410, .1201 -.1206. .1208 - .1209: 2Q .0103, 

.0107, .0808 - February 16, 1998: 15A NCAC 2D . 1501-. 1504, 

.1601, .2001-.2005: 2Q.0315. .0511 -April 15, 1998. 

Proposed Effective Date: April I, 1999 - 15A NCAC 2D 
.0405, .0409-0410, .0503 - .0504. .1501 -.1504, .1601, .2001 - 
.2005: 2Q .0102 - .0103. .0107, .0401 - .0402, .0801, .0803: 
July 1, 1999 - 15A NCAC 2D . 1201 - . 1206. . 1208 - . 1209: 2Q 
.0304, .0306, .0309, .0314 - .0315, .0511, .0808. 

A Public Hearing will be conducted at 7:00 p.m. on August 20, 
1998 at the Arclidale Building, Groundfloor Hearing Room, 512 
N. Salisbury Street, Raleigh, NC 27611. 

Reason for Proposed Action: 

ISA NCAC 2Q .0315, .0511 - are proposed for adoption and 

repeal, respectively, to eliminate confusion over which 

procedure to follow to add or remove terms in permits to avoid 

Title V permitting procedures. 

ISA NCAC 2D. 1 201 -.1206, .1208, .1209 - are proposed for 

amendment to incorporate federal emission guidelines for 

hospital, medical, and infectious waste incinerators. 

ISA NCAC 2Q .0107 - is proposed for amendment to allow 

more time for the Division to make a decision concerning the 

treatment of confidential information and remove the provision 

for a preliminary decision. 

ISA NCAC 2Q .0801, .0803 - are proposed for amendment to 

clarify that potential emissions of hazardous air pollutants that 

are also volatile organic compounds may be computed using the 

procedures in 2Q . 0803. 

ISA NCAC 2Q.0401 - .0402 - are proposed for amendment to 

incorporate the federal procedures and requirements of 40 CFR 

Part 76, Acid Rain Program. 

ISA NCAC 2Q .0103 - is proposed for amendment to add a 

definition for "sawmill". 

ISA NCAC 2Q .0808 - is proposed for adoption to add an 

exclusionaty rule for peak shaving generators. 

ISA NCAC 2Q .0304, .0306, .0309 - are proposed for 

amendment and ISA NCAC 2Q. 03 14 is proposed for adoption 

to incorporate clarifications for the issuance of construction and 

operating permits. 

ISA NCAC 2D .0S03 - .0S04 - are proposed for amendment to 

add definitions for "plant site" and "indirect heat exchanger". 

ISA NCAC 2Q .0102 - is proposed for amendment to clarify' 

permit exemptions. 

ISA NCAC 2D .040S, .0409 - are proposed for amendment and 

ISA NCAC 2D .0410 is proposed for adoption to implement 

national ambient air quality standards for ozone and particulate 

matter 

ISA NCAC 2D .2001 - .200S - are proposed for adoption, ISA 



NCAC 2D . 1601 is proposed for amendment, and ISA NCAC 
2D .ISOl - .IS04 are proposed for repeal to implement the 
requirements of transportation conformity. 

Comment Procedures: All persons interested in these matters 
are invited to attend the public hearings. Any person desiring 
to comment for more than three minutes is requested to submit 
a written statement for inclusion in the record of proceedings at 
the public hearing. The hearing record will remain open until 
September 2, 1998 to receive additional written statements. 
Comments should be sent to and additional information 
concerning the hearing or the proposals may be obtained by 
contacting: 

Mr Thomas Allen 
Division of Air Quality 

PO Box 29580 

Raleigh, NC 27626-0580 

(919) 733-1489 (phone) 

(919) 715-7476 (fax) 

thom_allen(a},aq. enr state, nc. us (e-mail) 

Fiscal Note: These Rules 15A NCAC 2D . 1201 - . 1206. . 1208 - 
. 1209 affect the expenditures or revenues of local government 
funds. 

Fiscal Note: These Rules 15A NCAC 2D .0405. .0409 - .0410, 

.0503 - .0504.. 1501 -.1504. .1601. .2001 - .2005: 2Q.0102 - 
.0103. .0107, .0304. .0306. .0309. .0314 -.0315. .0401 - .0402. 
.0511, .0801, .0803, .0808 do not affect the expenditures or 
revenues of state or local government funds. These Rules do not 
have a substantial economic impact of at least five million 
dollars ($5,000,000) in a 1 2-month period. 

CHAPTER 2 - ENVIRONMENTAL MANAGEMENT 

SUBCHAPTER 2D - AIR POLLUTION CONTROL 
REQUIREMENTS 

SECTION .0400 - AMBIENT AIR QUALITY 
STANDARDS 

.0405 OZONE 

The ambient air quality standard for ozone measured by a 
reference method based on Appendix D of 40 CFR Part 50 and 
designated in accordanc e with according to 40 CFR Part 53 is 
0.12 part 0.08 parts per milhon (235 microgram s p e r cubic 
m e t e r), (ppm). daily ma.ximum 8-hour average. The standard is 
attained at an ambient air quality monitoring site when ttie 
e xp e ct e d numb e r of day s per calendar y e ar with maximum 
hourly average of the annual fourth-highest daily maximum 8; 
hour average ozone concentrations abov e 0.12 part per million 
(235 micrograms p e r cubic met e r) is e qual to or less than 1.0. 
concentration is less than or equal to 0.08 parts per million 
(ppm) as determined by Appendix H I of 40 CFR Part 50. or 
equivalent methods established under 40 CFR Part 53. 

Authority G.S 143-21 5.3(a)(1): 143-215. 107(a)(3). 



m 



mim^mism^^^^m 



m 



PROPOSED RULES 



.0409 PMIO PARTICULATE MATTER 

(a) The ambient air quality standards for PMIO particulate 
matter are: 

(1) 150 micrograms per cubic meter (ug/m'). 24-hour 
average concentration; and 

(2) 50 micrograms per cubic meter (ug/m). annual 
arithmetic mean. 

These standards are attained when the e xp e ct e d numb e r of days 



standards in Paragraph (a) of this Rule, particulate matter shall 
be measured jn the ambient air as PM2.5 (particles with an 
aerodynamic diameter less than or equal to a nominal 2.5 
micrometers) b\ either: 

(1 ) a reference method based on Appendix L of 40 CFR 
Part 50 and designed according to 40 CFR Part 53; or 

(2) an equivalent method designed according to 40 CFR 
Part 53. 



p e r cal e ndar year with a 21 hour av e rag e conc e ntration abov e Authorll}' G.S. 143-2] 5.3(a)(1): 143-215. 107(a)(3). 



150 ug/m is e qual to or less than on e or wh e n th e e xp e ct e d 
annual arithmetic mean concentration is less than or equal to 50 
ug/m'. and when the 99th percentile 24-hour concentration js 
less than or equal to 150 ug/m'. as determined in accordanc e 
wi#t according to Appendix K N of 40 CFR Part 50. 

(b) For the purpose of determining attainment of the 
standards in Paragraph (a) of this R e gulation. Rule, particulate 
matter shall be measured jn the ambient air as PM 1 (particles 
with an aerodynamic diameter less than or equal to a nominal 10 
micrometers) fey; by either; 

(1) a reference method based on Appendix 4 M of 40 
CFR Part 50 and designated in accordanc e with 
according to 40 CFR Part 53; or 

(2) an equivalent method designated in accordanc e w ith 
according to 40 CFR Part 53. 

Authority- G.S. 143-2 15.3(a)(1): 143-215. 10:'(a)(3). 

.0410 PIV12.5 PARTICULATE MATTER 

(a) The ambient air qualits standards for PIV12.5 particulate 
matter are: 

( 1 ) 15.0 micrograms per cubic meter (u g/m'). annual 
arithmetic mean concentration; and 

(2) 65 micrograms per cubic meter (ug/m'). 24-hour 
average concentration. 

These standards are attained when the annual arithmetic mean 
concentration js less than or equal to 15.0 ug/m" and when the 
98th percentile 24-hour concentration is less than or equal to 65 
ugm'. as determined according to Appendix N of 40 CFR Part 
50, 

(b) For the purpose of determining attainment of the 



SECTION .0500 - EMISSION CONTROL 
STANDARDS 



.0503 



PARTICULATES FROM FUEL BURNING 
INDIRECT HEAT EXCHANGERS 

(a) For the purpose of this Rule the following definitions shall 



apply: 

in 



"Functionally dependent" means that structures, 
buildings or equipment are interconnected through 
common process streams. suppK lines, flues, or 
stacks. 

(2) "Indirect heat exchanger" means anv equipment used 
for the alteration of the temperature of one fluid by 
the use of another fluid m which the two fluids are 
separated by an impervious surface such that there is 
no mixing of the two fluids. 

(3) "Plant site" means any single or collection of 
structures. buildings. facilities. equipment, 
installations, or operations which: 

(A) are located on one or more adjacent properties. 

(B) are under common legal control, and 

(C) are functionally dependent in their operations. 

(b) The definition contained in Subparagraph (a)(3) of this 
Rule does not affect the calculation of the allowable emission 
rate of any indirect heat exchanger permitted prior to April L, 
1999. 

(c) (a) With the exceptions in Rule .0536 of this Section, 
emissions of particulate matter from the combustion of a fuel 
that are discharged from any stack or chimney into the 
atmosphere shall not exceed: 



Maximum Heat Input In 
Million BTU Ho u r Btu Hour 



Allowable Emission Limit 
For Particulate Matter 
In Lb/Million B444 Btu 



Up to and Including 10 
100 
1.000 
10.000 and Greater 



0.60 
0.33 
0.18 
0.10 



For a heat input between any two consecutive heat inputs stated 
in the preceding table, the allowable emissions of particulate 
matter shall be calculated by the equation E = 1 .090 times Q to 
the -0.2594 power. E = allowable emission limit for particulate 
matter in lb/million BTU. Btu. Q = maximum heat input in 
million BTU /hour. Btu hour. 

(d) ffe) This Rule applies to installations in which fuel is 
burned for the purpose of producing heat or power b\ indirect 



heat transfer. Fuels include those such as coal. coke, lignite, 
peat, natural gas. and fuel oils, but exclude wood and refuse not 
burned as a fuel. When any refuse, products, or bv-products of 
a manufacturing process are burned as a fuel rather than refuse, 
or in conjunction with an\ fuel, this allowable emission limit 
shall appK. 

(e) (e) For the purpose of this Rule, the maximum heat input 
shall be the total heat content of all fuels which are burned in a 



a 



itfi^MimH 



?. 199, 



iHmM 



m 



PROPOSED RULES 



fuel burning indirect heat exchanger, of which the combustion 
products are emitted through a stack or stacks. The sum of 
maximum heat input of all fuel burning indirect heat exchangers 
at a plant site which are in operation, under construction, or 
permitted pursuant to 1 5 A NCAC 2Q, shall be considered as the 
total heat input for the purpose of determining the allowable 
emission limit for particulate matter for each fuel burning 
indirect heat exchanger. Fuel burning indirect heat exchangers 
constructed or permitted after February 1 , 1 983, shall not change 
the allowable emission limit of any fuel burning indirect heat 
exchanger whose allowable emission limit has previously been 
set. The removal of a fuel burning indirect heat exchanger shall 
not change the allowable emission limit of any fuel burning 
indirect heat exchanger whose allowable emission limit has 
previously been established. However, for any fijel burning 
indirect heat exchanger constructed after, or in conjunction with, 
the removal of another fuel burning indirect heat exchanger at 
the plant site, the maximum heat input of the removed fuel 
burning indirect heat exchanger shall no longer be considered in 
the determination of the allowable emission limit of any fuel 
burning indirect heat exchanger constructed after or in 
conjunction with the removal. For the purposes of this 
Paragraph, refuse not burned as a fuel and wood shall not be 
considered a fiiel. For residential facilities or institutions (such 
as military and educational) whose primary fuel burning capacity 
is for comfort heat, only those fuel burning indirect heat 
exchangers located in the same power plant or building or 
otherwise physically interconnected (such as common flues, 
steam, or power distribution line) shall be used to determine the 
total heat input. 

(f) (d) The emission limit for fiiel burning equipment that 
bums both wood and other fuels in combination, or for wood 
and other fuel burning equipment that is operated such that 
emissions are measured on a combined basis, shall be calculated 
by the equation Ec = [(EW)(Ow) + (Eo)(0o)] /Qt. 

(1) Ec = the emission limit for combination or combined 
emission source(s) in lb/million BTU. Btu. 

(2) Ew = plant site emission limit for wood only as 
determined by Rule .0504 of this Section in lb/million 
BTUt Btu. 



(3) Eo = the plant site emission limit for other fuels only 
as determined by Paragraphs (a), (b) and (c) of this 
Rule in lb/million BTWr Btu. 

(4) Qw = the actual wood heat input to the combination 
or combined emission source(s) in BTU/hr. Btu/hr. 

(5) Qo = the actual other fuels heat input to the 
combination or combined emission source(s) in 
BTU/hr. Btu/hr. 

(6) Qt = Qw + Qo and is the actual total heat input to 
combination or combined emission source(s) in 
BTU/hr. Btu/hr. 

Authority G.S. 143-2 15.3(a)(1); 143-215. 107(a)(5). 

.0504 PARTICULATES FROM WOOD BURNING 
INDIRECT HEAT EXCHANGERS 

(a) For the purpose of this Rule the following definitions shall 

a pp l y : 

(1) "Functionally dependent" means that structures- 
buildings or equipment are interconnected through 
common process streams, supply lines, flues, or 
stacks. 

(2) "Indirect heat exchanger" means any equipment used 
for the alteration of the temperature of one fluid by 
the use of another fluid in which the two fluids are 
separated by an impervious surface such that there is 
no mixing of the two fluids. 

(3) "Plant site" means any single or collection of 
structures, buildings, facilities, equipment, 
installations, or operations which: 

(A) are located on one or more adjacent properties, 

(B) are under common legal control, and 

(C) are functionally dependent in their operations. 

(b) The definition contained in Subparagraph (a)(3) of this 
Rule does not affect the calculation of the allowable emission 
rate of any indirect heat exchanger permitted prior to April f, 
1999. 

(c) (a) Emissions of particulate matter from the combustion 
of wood shall not exceed: 



Allowable Emission Limit 
For Particulate Matter 
In Lb/Million BTU Btu 



Maximum Heat Input In 
Million BTU/Hour Btu/Hour 



Up to and Including 10 
100 
1.000 
10,000 and Greater 



0.70 
0.41 
0.25 
0.15 



For a heat input between any two consecutive heat inputs stated 
in the preceding table, the allowable emissions of particulate 
matter shall be calculated by the equation E = 1 . 1 698 times Q to 
the -0.2230 power. E = allowable emission limit for particulate 
matter in lb/million BTU. Btu. Q = Maximum heat input in 
million BTU/hour. Btu/hour. 

(d) fb) This R e gulation Rule applies to installations in which 
wood is burned for the primary purpose of producing heat or 



power by indirect heat transfer. 

(e) (e) For the purpose of this R e gulation, Rule, the heat 
content of wood shall be 8,000 &TU Btu per pound (dry-weight 
basis). The total of maximum heat inputs of all wood burning 
indirect heat exchangers at a plant site in operation, under 
construction, or with a permit shall be used to determine the 
allowable emission limit of a wood burning indirect heat 
exchanger. Wood burning indirect heat exchangers constructed 



MiWttttil^^^^^^ 



a 



PROPOSED RULES 



or permitted after Februar\ 1. 1983. shall not change the 
allowable emission limit of any wood burning indirect heat 
exchanger whose allowable emission limit has previously been 
set. 

(f) fd^ The emission limit for fuel burning equipment that 
bums both wood and other fuels in combination or for wood and 
other fuel burning equipment that is operated such that emissions 
are measured on a combination basis shall be calculated by the 
procedure described in Paragraph (d) of Rule .0503 of this 
Section. 

Authority G.S. 1-13-2 lx3(u)(I): 143-2 15. lO^falfS). 

SECTION .1200 - CONTROL OF EMISSIONS 
FROM INCINERATORS 

.1201 PURPOSE AND SCOPE 

(a) This Section sets forth rules for the control of the 
emissions of air pollutants from incinerators. 

(b) The rules in this Section apply to all types of incinerators 
as defined by 15A NCAC 2D .0101(19). .0101(20). including 
incinerators with heat recovery and industrial incinerators. The 
rul e s in this S e ction do not appK to aft e rburn e rs, flar e s, fum e 
incin e rators, and other similar d e vic e s us e d to r e duc e th e 
e mi ss ions of air pollutants from process e s, whos e e missions 
shall b e r e gulat e d as proc e s s e mis s ions. 

(c) This Section does not apply te toi 

( 1 ) afterburners, flares, fume incinerators, and other 
similar devices used to reduce emissions of air 
pollutants from processes, whose emissions shall be 
regulated as process emissions; 

(2) an\ boilers or industrial fiimaces that bum waste as a 
feetr fuel: 

fd4 (JJ Thi s S e ction do es not apply to air curtain bumers. 
which shall compK with Section .1900 of this 
Subchapt e r. Subchapter: or 
ie) (4J Thi s S e ction do e s not apply to incinerators used 
to dispose of dead animals or poultry that meet the 
following requirements; 

(4-) [AJ The incinerator is located on a farm and is 
owned and operated b\ the farm owner or by 
the farm operator: 
(3^ (BJ The incinerator is used soleK' to dispose of 
animals or poultry originating on the farm 
where the incinerator is located: 
(^ {£} The incinerator is not charged at a rate that 

exceeds its design capacity : and 

(4) iU} The incinerator complies with Rules .0521 

(\isible emissions) and .0522 (odorous 

emissions) of this Subchapter. 

(4) {d} If the incinerator is used solely to cremate pets or if 

the emissions of all toxic air pollutants from an incinerator and 

associated waste handling and storage are less than the levels 

listed in 15A NCAC 2Q .071 1. the incinerator shall be exempt 

from Rules .I205(tl through (p). and .1206 of this Section. 

Sewage sludge incinerators, sludge incinerators, and municipal 

waste combustors at small and large municipal waste combustor 

plants plants, and HMIW'ls are not eligible for exemption under 



this Paragraph. 

(g) (ej If an incinerator can be defined as being more than 
one type of incinerator, then the following order shall be used to 
determine the standards and requirements to apply: hazardous 
waste incinerators, sewage sludge incinerators, sludge 
incinerators, municipal waste combustor at a large or small 
municipal waste combustor plant, HMlWIs, m e dical wast e 
incin e rator s , crematory incinerators, and other incinerators. 

Authority G.S. 143-21 5.3(a)(1); 143-215. 107(aJ(lj,(3j,(4j. (5). 

.1202 DEFINITIONS 

For the purposes of this Section, the following definitions and 
those contained in 40 CFR 60. Subpart Ec, Standards of 
Performance for Hospital. Medical, and Infectious Waste 
Incinerators for Which Construction is Commenced after June 
20, 1996, shall apply: 

( 1 ) "Control efficiency" means the mass of a pollutant in 
the waste fed to an incinerator minus the mass of that 
pollutant in the exit gas from the incinerator stack 
divided by the mass of the pollutant in the waste fed 
to the incinerator 

(2) "Crematory incinerator" means any incinerator located 
at a crematory regulated under 21 NCAC 34C that is 
used solely for the cremation of human remains. 

(3) "Construction and demolition waste" means wood, 
paper, and other combustible waste resulting ft-om 
construction and demolition projects except for 
hazardous waste and asphaltic material. 

(4) "Dioxan e "Dioxin and Furan" means tetra- through 
octa- chlorinated dibenzo-p-dioxins and 
dibenzofurans. 

(5) "Hazardous waste incinerator" means an incinerator 
regulated under ISA NCAC 13A .000! through 
.0014. 40 CFR 264.340 to 264.351. Subpart O. or 
265.340 to 265.352. Subpart O. 

(6) "Hospital, medical and infectious waste incinerator 
(HMIWI)" means any device that combusts any 
amount of hospital, medical and infectious waste in 
which constmction was commenced on or before June 
20. 1996. except: 

(a) an\ HMIWI required to have a permit under 
Section 3005 of the Solid Waste Disposal Act: 

(b) an\ p\roKsis unit: 

(c) any cement kiln firing hospital waste or 
medical and infectious waste: 

(d) an\ physical or operational change made to an 
existing HMIWI solelv for the purpose of 
complying with the emission guidelines for 
HMlWIs in Rule .1205 of this Section. These 
physical or operational changes are not 
considered a modification and do not result in 
an existing HMIWI becoming subject to the 
provisions of 40 CFR Part 60. Subpart Ec: 

(e) an\ HMIWI during periods when onh 
pathological waste, low-level radioactive 
waste, or chemotherapeutic waste is bumed. 
provided that the owner or operator of the 



m 



iU^WiiMH 



.?. 199 



m 



M 



PROPOSED RULES 



HMIWI: 

(j} notifies the Director of an exemption 
claim; and 

£ii} i<eeps records on a calendar quarter 
basis of the periods of time when only 
pathological waste, low-level 

radioactive waste, or chemotherapeutic 
waste is burned; or 
£jQ any co-fired HMIWI, if the owner or operator 

ofthe co-fired HMIWI: 
(i] notifies the Director of an exemption 
claim; 

(ii) provides an estimate of the relative 
weight of hospital, medical and 
infectious waste, and other fuels or 
wastes to be combusted; and 

(iii") keeps records on a calendar quarter 
basis of the weight of hospital, medical 
and infectious waste combusted, and the 
weight of iU other fuels and wastes 
combusted at the co-fired HMIWI. 
£7j "Large HMIWI" means: 

(a) Except as provided jn Sub-item £b} of this 
Item: 

(j} a HMIWI whose maximum design 
waste burning capacity is more than 500 
pounds per hour; 

(ii) a continuous or intermittent HMIWI 
whose maximum charge rate is more 
than 500 pounds per hour; or 

(iii) a batch HMIWI whose maximum charge 
rate is more than 4,000 pounds per day. 

(b) The following are not large HMlWls: 

tij a continuous or intermittent HMIWI 
whose maximum charge rate is less than 
or equal to 500 pounds per hour; or 
(ii) a batch HMIWI whose maximum charge 
rate is less than or equal to 4,000 
pounds per day. 
(8) "Hospital waste" means discards generated at a 
hospital, except unused items returned to the 
manufacturer The definition of hospital waste does 
not include human corpses, remains, and anatomical 
parts that are intended for interment or cremation. 
(6) £9J "Large municipal waste combustor plant" means 
a municipal waste combustor plant with a municipal 
waste combustor aggregate plant capacity that is 
greater than 250 tons per day of municipal solid 
waste. 

(7) "M e dical wast e incin e rator" m e ans any incin e rator 

r e gulat e d und e r 15A NCAC 13B .1207(3). 
(10) "Medical and Infectious waste" means any waste 
generated in the diagnosis, treatment, or immunization 
of human beings or animals, jn research pertaining 
thereto, or in the production or testing of biologicals 
that is listed in Sub-items (a)(i) through (vii) of this 
Item, 
(a) The definition of medical and infectious waste 



includes: 



ti) 



(iii] 



tiyj 



ivj 



cultures and stocks of infectious agents 
and associated biologicals, including: 

(A) cultures from medical and 
pathological laboratories; 

(B) cultures and stocks of infectious 
agents from research and 
industrial laboratories; 

(C) wastes from the production of 
biologicals; 

(D) discarded live and attenuated 
vaccines; and 

(E) culture dishes and devices used 
to transfer, inoculate, and mix 
cultures; 

human pathological waste, including 
tissues, organs, and body parts and body 
fluids that are removed during surgery 
or autopsy, or other medical procedures, 
and specimens of body fluids and their 
containers; 

human blood and blood products 
including: 

(A) liquid waste human blood; 

(B) products of blood; 

(C) items saturated or dripping with 
human blood; or 

(D) items that were saturated or 
dripping with human blood that 
are now caked with dried human 
blood including serum, plasma, 
and other blood components, and 
their containers, which were used 
or intended for use in either 
patient care, testing and 
laboratory analysis or the 
development of pharmaceuticals. 
Intravenous bags are also 
included in this category; 

sharps that have been used in animal or 
human patient care or treatment or in 
medical, research, or industrial 
laboratories, including hypodermic 
needles, syringes (with or without the 
attached needle), pasteur pipettes, 
scalpel blades, blood vials, needles with 
attached tubing, and culture dishes 
(regardless of presence of infectious 
agents). Also included are other types 
of broken or unbroken glassware that 
were in contact with infectious agents, 
such as used slides and cover slips; 
animal waste including contaminated 
animal carcasses, body parts, and 
bedding of animals that were known to 
have been exposed to infectious agents 
during research (including research in 
veterinary hospitals), production of 



ma^mms^u^ 



t 1^1998 



A 



PROPOSED RULES 



biologicals 



or 



testing 



of 



(vU 



pharmaceuticals: 

isolation wastes including biological 
uaste and discarded materials 
contaminated with blood, excretions. 



(bi 



LiiJ 



exudates, or secretions from humans 
who are isolated to protect others from 
certain highh communicable diseases. 
or isolated animals knoun to be infected 
with highh communicable diseases: and 
unused sharps including the following 
unused or discarded sharps: 

(A) hxpodermic needles: 

(B) suture needles: 

(C) sxringes: and 

(D) scalpel blades. 
The definition of medical and infectious \%aste 
does not include: 

(U hazardous waste identified or listed 

under 40 CFR Part 261: 
(ii) household waste, as defined in 40 CFR 

Part 261.4(b)(1): 
(iii) ash from incineration of medical and 
infectious waste, once the incineration 
process has been completed: 
(iv) human corpses, remains, and anatomical 
parts that are intended for interment or 
cremation: and 
(\) domestic sewage materials identified in 
40 CFR261.4(aHl). 
"Medium HMIWT" means; 



(a) Except as pro\ided jn Sub-item (b) of this 
Item: 

IJJ a HMI\M whose maximum design 
waste burning capacirs is more than 200 
pounds per hour but less than or equal to 
500 pounds per hour: 

(ii) a continuous or intermittent HMIW'I 
whose maximum charge rate js more 
than 200 pounds per hour but less than 
or equal to 500 pounds per hour: or 

(iii) a batch HMIWl whose maximum charge 
rate is more than 1.600 pounds p er day 
but less than or equal to 4.000 pounds 
per day. 

(b) The following are not medium HVHW'ls: 

111 a continuous or intermittent HMIW'I 
whose maximum charge rate is less than 
or equal to 200 pounds per hour or more 
than 500 pounds per hour: or 
(ii) a batch HMIW'I whose maximum charge 
rate is more than or equal to 4.000 
pounds per day or less than or equal to 
1.600 pounds per da\. 
f^ ( 12) "Municipal waste combustor (MW'C) or 
municipal waste combustor unit" means a municipal 
waste combustor as defined in 40 CFR 60.5 lb. 
(^ ( 13) "Municipal waste combustor plant" means one 



( \C\\ 



f4^ 



f44^ 



f4^ 



(20) 



J 1 f,\ 



(221 



or more municipal waste combustor units at the same 
location for which construction, modification, or 
reconstruction commenced on or before September 
20. 1994. 

(14) "Municipal waste combustor plant capacit>'" 
means the aggregate municipal waste combustor unit 
capacit) of all municipal waste combustor units at a 
municipal waste combustor plant for which 
construction. modification. or reconstruction 
commenced on or before September 20. 1994. 

(15) "Municipal-t>pe solid waste (MSW)" means 
municipal-t\pe solid waste defined in 40 CFR 60.51b. 

( 16) "POTW" means a publicK owned treatment 
works as defined in 40 CFR 50 1 .2. 

( 17) "Same Location" means the same or contiguous 
propert> that is under common ownership or control 
including properties that are separated onK b> a 
street, road. highwaN. or other public right-of-wa\. 
Common ownership or control includes properties 
that are owned, leased, or operated b\ the same entitv; 
parent entit\. subsidian,. subdivision, or an\ 
combination thereof including any municipalit> or 
other governmental unit, or an\ quasi-go\emmental 
authority (e.g.. a public utilitv district or regional 
waste disposal authorit> ). 

(18) "Sewage sludge incinerator" means any 
incinerator regulated under 40 CFR Part 503, Subpart 
E. 

(19) "Sludge incinerator" means an\ incinerator 
regulated under Paragraph (a)(4) of Rule . 1 1 1 of this 
Subchapter but not under 40 CFR Part 503, Subpart 
E. 

"Small HMIWl" means: 



laj 



ibj 



Except as provided |n Sub-item (b) of this 

Item: 

111 a HMIW'I whose maximum design 
waste burning capacity js less than or 
equal to 200 pounds per hour: 

(ii) a continuous or intermittent HMIW'I 
whose maximum charge rate is less than 
or equal to 200 pounds per hour: or 

(iii) a batch HMIW'I whose maximum charge 
rate is less than or equal to 1,600 
pounds per da\ . 

The follow ing are not small HMIWTs: 
(i) a continuous or intermittent HMIW'I 



whose maximum charge rate is more 

than 200 pounds per hour: or 

(ii) a batch HMIW'I whose maximum charge 

rate is more than 1 ,600 pounds per da\. 

(21 ) "Small municipal waste combustor plant" means 

a municipal waste combustor plant w ith a municipal 

waste combustor plant capacity that is greater than 

38.8 tons per da> but not more than 250 tons per day 

of municipal solid waste. 

"Small remote HMIW 1" means any small HMIW I 
which is located more than 50 miles from the 
boundar\ of the nearest Standard Metropolitan 



U6 



SORTH CAROLISA REGISTER 



August 3. 1998 



i 



m 



PROPOSED RULES 



Statistical Area (SMSA) and which bums less than 
2,000 pounds per week of hospital, medical and 
infectious waste. The 2.000 pound per week 
limitation does not apply during performance tests. 

(23) "Standard Metropolitan Statistical Area (SMSA)" 
means any area listed in OMB Bulletin No. 93-17. 
entitled "Revised Statistical Definitions for 
Metropolitan Areas" dated July 30, 1993. The 
referenced document cited by this Item js hereby 
incorporated by reference and does not include 
subsequent amendments or editions. A copy of this 
document may be obtained from the Division of Air 
Quality. PO Box 29580. Raleigh. NC 27626-0580 at 
a cost of ten cents ($0.10) per page or may be 
obtained through the internet at 

"http://www.census.goy/population/estimates/metro- 
citv/93mfips.txt". 

f4-?) (24) "Total hydrocarbons" means the organic 
compounds in the stack exit gas from a sewage sludge 
incinerator measured using a flame ionization 
detection instrument referenced to propane. 

Authority G.S. 143-213: 1 43-2 15.3(a)(1). 

.1203 TEST METHODS AND PROCEDURES 

(a) The test methods and procedures described in Rule .0501 
of this Subchapter and in 40 CFR Part 60 Appendix A and 40 
CFR Part 61 Appendix B shall be used to determine compliance 
with emission rates. The test method for determining metals 
emissions from stationary combustion sources, commonly called 
Method 5 (interim), published by the US Environmental 
Protection Agency on August 28. 1989. shall be used to 
determine emission rates for metals. Method 5 (interim) shall be 
used to sample for chromium(Vl), and SW 846 Method 0013 
shall be used for the analysis. A copy of Method 5 (interim) and 
SW 846 Method 0013 may be obtained from the North Carolina 
Division of Air Quality. 

(b) The Director may require the owner or operator to test his 
incinerator to demonstrate compliance with the emission 
standards in Rule .1205 of this Section. 

(c) For the emission standards in Rule .1205(b)(5)(A). 
(b)(5)(B). .1205(b)(7)(A). (b)(7)(B). (f). and (g) of this Section, 
compliance shall be determined by averaging emissions over a 
one-hour period. 

(d) The owner or operator of a sewage sludge incinerator 
shall perform testing to determine pollutant control efficiencies 
of any pollution control equipment and obtain information on 
operational parameters, including combustion temperature, to be 
placed in an air quality permit. 

(e) The owner or operator of a municipal waste combustor at 
a small or large municipal waste combustor plant shall do 
performance testing in accordance with 40 CFR Part 60.58b. 
For municipal waste combustor at large municipal waste 
combustor plants that achieve a dioxin and furan emission level 
less than or equal to 1 5 nanograms per dr>' standard cubic meter 
total mass, corrected to seven percent oxygen, the performance 
testing shall be performed in accordance with the testing 
schedule specified in 40 CFR 60.58b(g)(5)(iii). For municipal 



waste combustor at small municipal waste combustor plants that 
achieve a dioxin and furan emission level less than or equal to 
30.0 nanograms per dry standard cubic meter total mass, 
corrected to seven percent oxygen, the performance testing shall 
be performed in accordance with the testing schedule specified 
in 40 CFR 60.58b(g)(5)(iii). 

(0 Referenced document SW-846 "Test Methods for 
Evaluating Solid Waste", Third Edition, cited by this Rule is 
hereby incorporated by reference and does not include 
subsequent amendments or editions. A copy of this document is 
available for inspection at the North Carolina Department of 
Environm e nt. Health, Environment and Natural Resources 
Library located at 512 North Salisbury Street, Raleigh. NC 
27603. Copies of this document may be obtained through the 
US Government Printing Office. Superintendent of Documents, 
PQ Box 371954, Pittsburgh, PA 1 5250-7954, or by calling (202) 
783-3238. The cost of this document is three hundred nineteen 
dollars ($3 19.00). 

Authority G.S. 1 43-21 5.3(a)(1): 143-21 5.107(a)(5). 

.1204 REPORTING AND RECORDKEEPING 

(a) The reporting and recordkeeping requirements of Rule 
.1105 of this Subchapter shall apply to all incinerators in 
addition to any reporting and recordkeeping requirements that 
may be contained in any other rules. 

(b) The owner or operator of an incinerator, except an 
incinerator meeting the requirements of 15A NCAC 2D 
.1201( e ). .1201(c)(4). shall maintain and operate a continuous 
temperature monitoring and recording device for the primary 
chamber and. where there is a secondary chamber, for the 
secondary chamber. The Director may require a temperature 
monitoring device for incinerators meeting the requirements of 
1 5A NCAC 2D .1201( e ). .1201(c)(4). The owner or operator of 
an incinerator that has installed air pollution abatement 
equipment to reduce emissions of hydrogen chloride shall install, 
operate, and maintain continuous monitoring equipment to 
measure pH for wet scrubber systems and rate of alkaline 
injection for dry scrubber systems. The Director shall require 
the owner or operator of an incinerator with a permitted charge 
rate of 750 pounds per hour or more to install, operate, and 
maintain continuous monitors for oxygen or for carbon 
monoxide or both as necessary to determine proper operation of 
the incinerator. TTie Director may require the owner or operator 
of an incinerator with a permitted charge rate of less than 750 
pounds per hour to install, operate, and maintain monitors for 
oxygen or for carbon monoxide or both as necessary to 
determine proper operation of the incinerator. 

(c) In addition to the requirements of Paragraphs (a) and (b) 
of this Rule, the owner or operator of a sewage sludge 
incinerator shall: 

(1) install, operate, and maintain, for each incinerator. 

continuous emission monitors to determine the 

following: 

(A) total hydrocarbon concentration of the 
incinerator stack exit gas in accordance with 40 
CFR 503.45(a) unless the requirements for 
continuously monitoring carbon monoxide as 



itfiUlttAiliiii^^i^a 



277 



PROPOSED RULES 



provided in 40 CFR 503.40(c) are satisfied; 

(B) ox\gen concentration of the incinerator stack 
exit gas; and 

(C) moisture content of the incinerator stack exit 
gas; 

(2) monitor the concentrations of ben,Hium and mercun, 
from the sludge fed to the incinerator at least as 
frequenth as required under Rule .1110 of this 
Subchapter but in no case less than once per \ear; 

(3) monitor the concentrations of arsenic, cadmium. 
chromium, lead, and nickel in the sewage sludge fed 
to the incinerator at least as frequenth as required 
under 40 CFR 503.46(a)(2) and (3); 

(4) determine mercur\' emissions by use of Method 105 
Method 101 or 101 A of 40 CFR Part 6 1 . Appendix B. 
where applicable to 40 CFR 61.55(a); 

(5) maintain records of all material required under Rule 
.1203 and .1204 of this Section in accordance with 40 
CFR 503.47; and 

(6) for class I sludge management facilities (as defined in 
40 CFR 503.9)'^ POTWs (as defined in 40 CFR 50 1 .2) 
with a design fiow rate equal to or greater than one 
million gallons per da\'. and POTWs that serve a 
population of 10.000 people or greater, submit the 
information recorded in Subparagraph (c)(4) of this 
Rule to the Director on or before Februan. 1 9 of each 
\ear. 

(d) In addition to the requirements of Paragraphs (a) and (b) 
of this Rule, the owner or operator of a small or large municipal 
waste combustor plant shall: 

(1) install, operate, and maintain, for each municipal 
waste combustor. continuous emission monitors to 
determine the follow ing: 

(A) opacity in accordance with 40 CFR 60.58b(c). 

(B) sulfur dioxide in accordance with 40 CFR 
60.58b(e). 

(C) nitrogen dioxide in accordance with 40 CFR 
60.58b(h). (This requirement applies only to 
large municipal waste combustor plants). 

(2) maintain records of the information listed in 40 CFR 
60.59b. Paragraphs (d)( 1) through (d)(15) for a period 
of at least fi\e years. 

(3) following the initial compliance tests as required 
under Rule .1203 of this Section, submit the 
information specified in 40 CFR 60.59b. Paragraphs 
(f)(1) through (f)(6). in the initial performance test 
report. 

(4) following the first \ear of municipal combustor 
operation, submit an annual report including the 
information specified in 40 CFR 60.59b. Paragraphs 
(g)(1) through (g)(4). as applicable, no later than 
February 1 of each sear follow ing the calendar year in 
which the data were collected. Once the unit is 
subject to permitting requirements under 1 5A NCAC 
2Q. 0500. Title V Procedures, the owner or operator 
of an affected facility must submit these reports 
semiannually. 

(5) submit a semiannual report that includes information 



specified in 40 CFR 60.59b. Paragraphs (h)(1) 
through (h)(5), for any recorded pollutant or 
parameter that does not comply with the pollutant or 
parameter limit specified in this Section, according to 
the schedule specified in 40 CFR 60.59b(h)(6). 

(e) In addition to the requirements of Paragraphs (a) and (b) 
of this Rule, the owner or operator of a HMIWl shall comply 
with the recording and recordkeeping requirements listed in 40 
CFR Part 60.58c(b). (cj, (dj. (el and IfL excluding Subparts 
(b)(2)(ii) and (b)(7). 

(f) In addition to the requirements of Paragraphs (a), (b). and 
(e) of this Rule, the owner or operator of a small remote HMIWI 
shall: 

( 1 ) maintain records of the annual equipment inspections, 
an\ required maintenance, and any repairs not 
completed within 10 da\s of an inspection; 

(2) submit an annual report containing information 
recorded in Subparagraph ( 1 ) of this Paragraph to the 
Director no later than 60 da\'s following the sear in 
which data were collected. Subsequent reports shall 
be sent no later than 12 calendar months following the 
previous report. The report shall be signed by the 
HMIWI manager; and 

(3) submit the reports required b\ Subparagraphs ( 1 ) and 
(2) of this Paragraph to the Director semiannually 
once the HMIWI is subject to the permitting 
procedures of I5A NCAC 2Q .0500. Title V 
Procedures. 

(g) Waste Management Guidelines. The owner or operator of 
a HMIWI shall compK with the requirements of 40 CFR Part 
60.55c for the preparation and submittal of a waste management 
plan. 

(h) Except as provided in Paragraph (jj of this Rule, the 
owner or operator of any HMIWI shall compK with the 
monitoring requirements in 40 CFR Part 60.57c. 

ii) The owner or operator of an\ small remote HMIWI shall: 

( 1 ) install, calibrate, maintain, and operate a device for 
measuring and recording the temperature of the 
secondary chamber on a continuous basis, the output 
of which shall be recorded, at a minimum, once every 
minute throughout operation. 

(2) install, calibrate, maintain, and operate a device which 
automatically measures and records the date, time, and 
y\ eight of each charge fed into the HMIWI. 

(3) obtain monitoring data at aJl times during HMIWI 
operation except during periods of monitoring 
equipment malfunction, calibration, or repair. At a 
minimum, valid monitoring data shall be obtained for 
75 percent of the operating hours per calendar quarter 
that the HMIWI is combusting hospital, medical and 
infectious waste. 

{^ (j} All monitoring devices and systems required by this 
Rule shall be subject to a quality assurance program approy ed by 
the Director. Such quality assurance program shall include 
procedures and frequencies for calibration, standards 
traceability. operational checks, maintenance, auditing, data 
\alidation. and a schedule for implementing the quality 
assurance program. 



278 



NORTH CAROLIXA REGISTE 



k 



3. 199i 



m 



PROPOSED RULES 



Authority G.S. 143-2 15.3(a)(1): 143-215. 107(a)(4),(5). 



.1205 EMISSION STANDARDS 

(a) The emission standards in this Rule apply to all 
incinerators except where Rule .0524, .11 10, or .1 1 1 1 of this 
Subchapter applies except that Subparagraphs (p)(2) and (4) of 
this Rule shall control in any event. 

(b) Particulate matter 

(1) Hazardous waste incinerators shall meet the 
particulate matter requirements of 40 CFR 264.343(c). 

(2) The emissions of particulate matter from each 
municipal waste combustor located at a small 
municipal waste combustor plant shall not exceed 70 
milligrams per dry standard cubic meter, corrected to 



seven percent oxygen. 

(3) The emissions of particulate matter from each 
municipal waste combustor located at a large 
municipal waste combustor plant shall not exceed 27 
milligrams per dry standard cubic meter corrected to 
seven percent oxygen. 

(4) Conical incinerators covered by Rule .0523 of this 
Subchapter shall comply with that rule instead of this 
Paragraph. 

(5) The emissions of particulate matter from a HMIWl 
shall not exceed: 



Incinerator Size 


Allowable Emission Rate (mg/dscm) 




[corrected to seven percent oxveenl 


Small 


115 


Medium 


69 


Large 


34 



(6) The emissions of particulate matter from any small 
remote HMIWI shall not exceed 197 milligrams per 
dry standard cubic meter, corrected to seven percent 
oxygen. 

itS) (7j Any incinerators not covered under 

Subparagraphs (1), (2), (3), or ( 4 ) (JQ through (6} of 



this Paragraph shall comply with one of the following 

emission standards for particulate matter: 

(A) The emission of particulate matter from any 

stack or chimney of an incinerator shall not 

exceed: 



Refuse Charge (lb/hour) 


Allowable Emission Rate (lb/hour) 


In Lb/Hour 


For Particulate Matter 




In Lb/Hour 


Oto 100 


0.2 


200 


0.4 


500 


1.0 


1.000 


2.0 


2,000 and Above 


4.0 



(B) 



For a refuse charge between any two 
consecutive rates stated in the preceding table, 
the allowable emissions rate for particulate 
matter shall be calculated by the equation 
E=0.002P. E=allowable emission rate for 
particulate matter in lb/hour. P=refuse charge 
in lb/hour 

Instead of meeting the standards in Part 
(b)(5)(A) (7)(A) of this Rtfk; Paragraph, the 
owner or operator of an incinerator may choose 
to limit particulate emissions from the 
incinerator to 0.08 grains per dry standard 



cubic foot corrected to 12 percent carbon 

dioxide. In order to choose this option, the 

owner or operator of the incinerator shall 

demonstrate that the particulate ambient air 

quality standards will not be violated. To 

correct to 12 percent carbon dioxide, the 

measured concentration of particulate matter is 

multiplied by 12 and divided by the measured 

percent carbon dioxide. 

(c) Sulfur dioxide. 

( 1 ) The emissions of sulfur dioxide from each municipal 

waste combustor located at a small municipal waste 



tt 



mummmims^^^^mk 



279 



PROPOSED RULES 



combustor plant shall be reduced b\ at least 50 
percent b\ weight or volume or to no more than 80 
parts per million by volume corrected to seven percent 
oxNgen (dr\ basis), whichever is less stringent. 
Compliance with this emission limit is based on a 24- 
hour daily geometric mean. 

(2) The emissions of sulfur dioxide from each municipal 
waste combustor located at a large municipal waste 
combustor plant shall be reduced by at least 75 
percent by weight or volume or to no more than 31 
parts per million b\' volume corrected to seven percent 
oxNgen (dn basis), whichever is less stringent. 
Compliance with this emission limit is based on a 24- 
hour daily geometric mean. 

(3) The emissions of sulfur dioxide from any HMIWI 
shall not exceed 55 parts per million corrected to 
seven percent oxNgen (dr\ basis). 

(3^ (4j An> incinerator not covered under Subparagraphs 
(1) and (2) (1) through (3) of this Paragraph shall 
comply with Rule .0516 of this Subchapter. 

(d) Visible emissions. 

(1) The emission limit of opacity from each municipal 
waste combustor located at a small or large municipal 
waste combustor plant shall not exceed 10 percent (6- 
minute average). 

(2) Air curtain incinerators shall comply with Rule .1904 
of this Subchapter. 

(3) On and after the date on which the initial performance 
test is completed, the owner or operator of any 
HMIWI shall not cause to be discharged into the 
atmosphere from the stack of the HMIWI any gases 
that exhibit greater than 10 percent opacity (6-minute 
block average). 

(4^ (4j An\ incinerator not covered under Subparagraphs 
(1) and (2) (1) through (3) of this Paragraph shall 
compK v\ith Rule .0521 of this Subchapter. 

(e) Odorous emissions. Incinerators shall compK with Rule 
.0522 of this Subchapter. 

(f) Hydrogen chloride. 

(1) The emissions of h\drogen chloride from each 
municipal waste combustor at small municipal waste 
combustor plants shall be reduced b\ at least 50 
percent b\ weight or volume or to no more than 250 
parts per million b\ volume corrected to seven percent 
oxygen (dr\ basis), whichever is less stringent. 

(2) The emissions of h\drogen chloride from each 
municipal waste combustor at large municipal waste 
combustor plants shall be reduced b> at least 95 
percent b> weight or volume or to no more than 3 1 
parts per million by volume, corrected to se\en 
percent oxygen (dry basis), whichever is less 
stringent. 

(3) Hazardous waste incinerators shall meet the hydrogen 
chloride emissions requirements of 40 CFR 
264.343(b). 

(4) The emissions of h\drogen chloride from an\' small, 
medium, or large HMIWI shall be reduced by at least 
93 percent by weight or volume or to no more than 



100 parts per million by volume corrected to seven 
percent oxygen (dry basis), whichever is less 
stringent. 
(5) The emissions of hydrogen chloride from anv small 
remote HMIWI shall not exceed 3100 parts per 
million by volume corrected to seven percent oxygen 
(dry' basis). 
(4^ (j6j Emissions of hydrogen chloride from all other 
incinerators shall not exceed four pounds per hour 
unless it is reduced by at least 90 percent by weight or 
to no more than 50 parts per million by volume 
corrected to seven percent oxygen (drv' basis), 
(g) Mercury emissions. 

(1) Emissions of mercury fi"om each municipal waste 
combustor at a small or large municipal yvaste 
combustor plant shall be reduced by at least 85 
percent by weight or shall not exceed 0.08 milligrams 
per dry standard cubic meter, corrected to seven 
percent oxygen, whichever is less stringent. 

(2) Emissions of mercury from sludge incinerators and 
sewage sludge incinerators are regulated under 15A 
NCAC2D.rilO. 

(3) Emissions of mercury from any small, medium, or 
large HMIWI shall be reduced by at least 85 percent 
b\ weight or shall not exceed 0.55 milligrams per dry 
standard cubic meter, corrected to seven percent 
oxygen, whichever is less stringent. 

(4) Emissions of mercun. from an\ small remote HMIWI 
shall not exceed 7.5 milligrams per dry standard cubic 
meter, corrected to seven percent oxygen. 

(4) [5j Emissions of mercun. and mercury compounds 
from the stack or chimney of a hazardous waste 
incinerator incin e rator, m e dical wast e incin e rator, or 
any other type incinerator not identified in 
Subparagraphs (g)(1) through (g)(4) of this Rule shall 
not exceed 0.032 pounds per hour, 
(h) Beryllium Emissions. Beryllium emissions from sludge 

incinerators and sewage sludge incinerators shall comply with 

15ANCAC .11 10 of this Subchapter, 
(i) Lead Emissions. 
(1) Emissions of lead from each municipal waste 
combustor at a small municipal waste combustor plant 
shall not exceed 1.6 milligrams per dry standard cubic 
meter, corrected to seven percent oxygen. 
Emissions of lead from each municipal waste 
combustor at a large municipal waste combustor plant 
shall not exceed 0.49 milligrams per dry standard 
cubic meter, corrected to seven percent oxygen. 
The daily concentration of lead in sey\age sludge fed 
to a sewage sludge incinerator shall meet the 
requirements specified in 40 CFR 503.43(c). 
Emissions of lead from any small, medium, or large 



(2) 



(3) 



14J 



m 



HMIWI shall be reduced by at least 70 percent by 
weight or shall not exceed 1.2 milligrams per dry 
standard cubic meter, corrected to seven percent 
oxy gen, whichever is less stringent. 
Emissions of lead from any small remote HMIWI 
shall not exceed 10 milligrams per dry standard cubic 



2H0 



\OR TH CAROLINA REGISTER 



4</»f/vr?. 1998 



J±± 



^^w 



PROPOSED RULES 



meter, corrected to seven percent oxygen. 
(i) Cadmium Emissions. 

(1) Emissions of cadmium from each municipal waste 
combustor at a small municipal waste combustor plant 
shall not exceed 0.10 milligrams per dry standard 
cubic meter, corrected to seven percent oxygen. 

(2) Emissions of cadmium from each municipal waste 
combustor at a large municipal waste combustor plant 
shall not exceed 0.040 milligrams per dry standard 
cubic meter, corrected to seven percent oxygen. 

(3) Emissions of cadmium from any small, medium, or 
large HMIWl shall be reduced by at least 65 percent 
by weight or shall not exceed 0. 16 milligrams per dry 
standard cubic meter, corrected to seven percent 
oxygen, whichever is less stringent. 

(4) Emissions of cadmium from any small remote 
HMIWI shall not exceed 4 milligrams per dry 
standard cubic meter, corrected to seven percent 
oxygen. 

(k) Other Metal Emissions. The daily concentration of 
arsenic, cadmium, chromium, and nickel in sewage sludge fed to 
a sewage sludge incinerator shall meet the requirements 
specified in 40 CFR 503.43(d). 

(1) The owner or operator of an incinerator shall demonstrate 
compliance with Section .1 100 of this Subchapter in accordance 
with 15ANCAC2Q.0700. 

(m) Dioxins and Furans. 

(1) The emissions of dioxins and furans from each 
municipal waste combustor located at a small 
municipal waste combustor plant shall not exceed 125 
nanograms per dry standard cubic meter (total mass) 
corrected to seven percent oxygen. 

(2) The emissions of dioxins and furans from each 
municipal waste combustor located at a large 
municipal waste combustor plant shall not exceed: 

(A) 60 nanograms per dry standard cubic meter 
(total mass) corrected to seven percent oxygen 
for facilities that employ an electrostatic 
precipitator-based emission control system, or 

(B) 30 nanograms per dry standard cubic meter 
(total mass) corrected to seven percent oxygen 
for facilities that do not employ an electrostatic 
precipitator-based emission control system. 

(3) The emissions of dioxins and furans from any small, 
medium, or large HMIWI shall not exceed 125 
nanograms per dry standard cubic meter total 
dioxins/furans. corrected to seven percent oxygen or 
2.3 nanograms per dry standard cubic meter (toxic 
equivalency), corrected to seven percent ox>gen. 

(4) The emissions of dioxins and furans from any small 
remote HMIWI shall not exceed 800 nanograms per 
dry standard cubic meter total dioxins/furans, 
corrected to seven percent oxygen or 15 nanograms 
per dry standard cubic meter (toxic equivalency), 
corrected to seven percent oxygen. 

(n) Nitrogen oxide. 
(1 ) The emissions of nitrogen oxide from each municipal 
waste combustor located at a large municipal waste 



combustor plant shall not exceed the emission limits 
in Table 1 of Paragraph (d) of 40 CFR 60.33b. 
Nitrogen oxide emissions averaging is allowed as 
specified in Paragraphs (d)(l)(i) through (d)(l)(v) of 
40 CFR 60.33b. Nitrogen oxide emissions control is 
not required for municipal waste combustors located 
at small municipal waste combustor plants. 
(2) The emissions of nitrogen oxides from any HMIWI 
shall not exceed 250 parts per million by volume 
corrected to seven percent oxygen (dry basis). 
(o) Fugitive ash. 

( 1 ) On or after the date on which the initial performance 
test is completed, no owner or operator of a 
municipal waste combustor located at a small or large 
municipal waste combustor plant shall cause to be 
discharged to the atmosphere visible emissions of 
combustion ash from an ash conveying system 
(including conveyor transfer points) in excess of five 
percent of the observation period (i.e., nine minutes 
per three-hour period), as determined by EPA 
Reference Method 22 observations as specified in 40 
CFR 60.58b(k). except as provided in Subparagraphs 
(2) and (3) of this Paragraph. 

(2) The emission limit specified in Subparagraph (1) of 
this Paragraph covers visible emissions discharged to 
the atmosphere from buildings or enclosures, not the 
visible emissions discharged inside of the buildings or 
enclosures, of ash conveying systems. 

(3) The provisions specified in Subparagraph (1 ) of this 
Paragraph do not apply during maintenance and repair 
of ash conveying systems. 

(p) Ambient standards. 

( 1 ) In addition to the ambient air quality standards in 
Section .0400 of this Subchapter, the following 
ambient air quality standards, which are an annual 
average, in milligrams per cubic meter at 77° F (25° 
C) and 29.92 inches (760 mm) of mercury pressure 
shall apply aggregately to all incinerators at a facility: 

(A) arsenic and compounds 2.3x10"' 

(B) beryllium and compounds 4.1x10" 

(C) cadmium and compounds 5.5x10" 

(D) chromium(Vl) and compounds 8.3x10"* 

(2) When Subparagraph ( I ) of this Paragraph and either 
Rule .0524, .1110, or .1111 of this Subchapter 
regulate the same pollutant, the more restrictive 
provision for each pollutant shall apply, 
notwithstanding provisions of Rule .0524, .1110, or 
.1111 of this Subchapter to the contrary. 

(3) The owner or operator of a facility with incinerators 
shall demonstrate compliance with the ambient 
standards in Parts (1)(A) through (D) of this 
Paragraph by following the procedures set out in Rule 
.1106 of this Subchapter. Modeling demonstrations 
shall comply with the requirements of Rule .0533 of 
this Subchapter. 

(4) The emission rates computed or used under 
Subparagraph (3) of this Paragraph that demonstrate 
compliance with the ambient standards under 



ML 



NORTH CARPI INA RFC.ISTFR Au.u.f ,. 199S 



2S, 



PROPOSED RULES 



Subparagraph ( 1 ) of this Paragraph shall be placed in 

the permit for the facility with incinerators as their 

allowable emission limits unless Rule .0524. . 1 1 1 or 

.1111 of this Subchapter requires more restrictive 

rates. 

(q) Carbon Monoxide. The emissions of carbon monoxide 

from any HMIWI shall not exceed 40 parts per million by 

volume, corrected to seven percent ox\gen (dry basis). 

Authority G.S. 143-21 5. 3(a)(l ): 143-215. 107(a)(3). (4>.(5}. 

.1206 OPERATIONAL STANDARDS 

(a) The operational standards in this Rule do not apply to 
incinerators where operational standards in Rule .0524. .1110, 
or . 1 1 1 1 of this Subchapter apply. 

(b) Hazardous waste incinerators. Hazardous waste 
incinerators shall comply with 15A NCAC 13A .0001 through 
.0014. which are administered and enforced by the Division of 
Waste Management. 

(c) M e dical wa s t e incin e rators. M e dical waste incinerators 
shall m ee t th e following r e quir e m e nts: 

fl-) — Th e s e condar> chamb e r t e mp e ratur e shall b e at l e a s t 

(34 — Ga se s g e n e rat e d by th e combustion s hall b e subj e ct e d 
to a minimum temperature of 1800 *^ F for a p e riod of 
not l e ss than one s e cond. 

Medical wast e incin e rators shall comply with 15A NCAC 13B 

.1207(3) and any oth e r p e rtin e nt parts of 1 5 A NCAC 1 3B . 1 200. 

which ar e administ e r e d and e nforc e d by th e Division of Wast e 

Managem e nt. 

(c) Hospital. Medical and Infectious Waste Incinerators. 
Each small remote HMIWI shall have an initial equipment 
inspection b\ July I. 2000. and an annual inspection each year 
thereafter. 

( 1 ) At a minimum, the inspection shall include all the 
elements listed in 40 CFR 60.36e(a)( I )(i) through 

(xvii). 

(2) Any necessarN repairs found during the inspection 
shall be completed within 10 operating da\s of the 
inspection unless the owner or operator submits a 
written request to the Director for an extension of the 
1 operating day period. The Director shall grant the 
extension if: 

(A) the owner or operator of the small remote 
HMIWI demonstrates that achie\ing 
compliance by the time allowed under this 
Subparagraph is not feasible, and 

(B) the Director does not extend the time allowed 
for compliance by more than 30 da\'s following 
the receipt of the written request. 

(d) The owner or operator of any HMIWI. except small 
remote HMIWI. subject to thus Section shall compK with the 
compliance and performance testing requirements of 40 CFR 
Part 60.56c. excluding the fugitive emissions testing 
requirements under 60.56c(b)( 12) and (c)(3). 

(e) The owner or operator of an> small remote HMIWI shall 
compK the following compliance and performance testing 
requirements: 



( 1) conduct the performance testing requirements in 40 
CFR 60.56c(a). (b)(1) through (b)(9). (b)(in 
(mercur\ onlv). and (c)(1). The 2.000 pound per 
week limitation does not apply during performance 
tests; 

(2) establish maximum charge rate and minimum 
secondary chamber temperature as site-specific 
operating parameters during the initial performance 
test to determine compliance with applicable emission 
limits; and 

(3) following the date on which the initial performance 
test is completed, ensure that the HMIWI does not 
operate above the maximum charge rate or below the 
minimum secondary chamber temperature measured 
as three hour rolling averages, calculated each hour as 
the average of aH previous three operating hours, at al] 
times except during periods of start-up. shut-down and 
malfunction. Operating parameter limits do not apply 
during performance tests. Operation above the 
maximum charge rate or below the minimum 
secondary' chamber temperature shall constitute a 
violation of the established operating parameters. 

tf) Except as provided in Paragraph (g) of this Rule, operation 
of the HMIWI above the maximum charge rate and below the 
minimum secondary temperature, each measured on a three hour 
rolling average, simultaneously shall constitute a violation of the 
PM. CO. and dioxin/furan emission limits. 

(g) The owner or operator of a HMIWI may conduct a repeat 
performance test within 30 days of violation of applicable 
operating parameters to demonstrate that the HMIWI js not in 
violation of the applicable emission limits. Repeat performance 
tests conducted pursuant to this Paragraph must be conducted 
using the identical operating parameters that indicated a violation 
under Paragraph (f) of this Rule. 

(4) Ih} Municipal waste combustor plants. Each municipal 
waste combustor located at a small or large municipal waste 
combustor plant shall meet the following operational s tandard: 
standards: 

(1) The concentration of carbon monoxide at the 
combustor outlet shall not exceed the concentration in 
Table 3 of Paragraph (a) of 40 CFR 60.34b. The 
combustor technology named in this table is defined 
in 40 CFR 60.5 lb. ^' 

(2) The load level shall not exceed 110 percent of the 
maximum demonstrated municipal waste combustor 
unit load, except as specified in Paragraphs (b)( 1 ) and 
(b)(2) of 40 CFR 60.53b. The maximum 
demonstrated municipal waste combustor unit load is 
defined in 40 CFR 60.51b and the averaging time is 
specified under 40 CFR 60.58b(i). 

(3) The temperature at which the combustor operates, 
measured at the particulate matter control device inlet, 
shall not exceed 63 ° Fahr e nh e it F above the maximum 
demonstrated particulate matter control device 
temperature, except as specified in Paragraphs (c)( I ) 
and (c)(2) of 40 CFR 60.53b. The maximum 
demonstrated particulate matter control device 
temperature is defined in 40 CFR 60.51b and the 



282 



SORTH CAROLINA REGISTER 



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PROPOSED RULES 



averaging time is specified under 40 CFR 60.58b(i). 

(e) tij Sludge incinerators. The combustion temperature in 

a sludge incinerator shall not be less than 1200°F. The 

maximum oxygen content of the exit gas from a sludge 

incinerator stack shall be: 

(1) 12 percent (dry basis) for a multiple hearth sludge 
incinerator, 

(2) seven percent (dr>' basis) for a fluidized bed sludge 
incinerator, 

(3) nine percent (dry basis) for an electric sludge 
incinerator, and 

(4) 12 percent (dry basis) for a rotary kiln sludge 
incinerator. 

(4^ (jj Sewage sludge incinerators. 

( 1 ) The maximum combustion temperature for a sewage 
sludge incinerator shall be placed in the permit and 
based on information obtained during the performance 
test of the sewage sludge incinerator to determine 
pollutant control efficiencies. 

(2) The values for the operational parameters for the 
sewage sludge incinerator air pollution control 
device(s) shall be placed in the permit and be based on 
information obtained during the performance test of 
the sewage sludge incinerator to determine pollutant 
control efficiencies. 

(3) The monthly average concentration for total 
hydrocarbons, or carbon monoxide as provided in 40 
CFR 503. 40(c), in the exit gas from a sewage sludge 
incinerator stack, corrected to zero percent moisture 
and seven percent oxygen as specified in 40 CFR 
503.44. shall not exceed 100 parts per million on a 
volumetric basis using the continuous emission 
monitor required in Rule .1204(c)(1) of this Section. 

(g) (kj Cremator> incinerators. Gases generated b> the 
combustion shall be subjected to a minimum temperature of 
1600°F for a period of not less than one second. 

(to tli Other incinerators. All incinerators not covered under 
Paragraphs (a) through fg) £k} of this Rule shall meet the 
following requirement: Gases generated b\ the combustion shall 
be subjected to a minimum temperature of 1 800 "F for a period 
of not less than one second. The temperature of 1 800 " F shal 1 be 
maintained at least 55 minutes out of each 60-minute period, but 
at no time shall the temperature go below 1600°F. 

(4) (m} Except during start-up where the procedure has been 
approved in accordance with Rule .0535(g) of this Subchapter, 
waste material shall not be loaded into any incinerators covered 
under Paragraph (c). (d), (g), or (i) (h), (k], or (1) of thjs Rule 
when the temperature is below the minimum required 
temperature. Start-up procedures may be determined on a case- 
by-case basis in accordance with Rule .0535(g) of this 
Subchapter. Incinerators covered under Paragraph (c), (d), (g), 
or (i) (h), (k), or (I) of this Rule shall have automatic auxiliary 
burners that are capable of maintaining the required minimum 
temperature in the secondary chamber excluding the heat content 
of the wastes. 

Authorities. N3-2I5.3(aJ(lJ: 143-215. 107(a)(5). 



.1208 OPERATOR TRAINING ANDCERTIFICATION 

(a) Municipal Waste Combustors. 
(1) By January 1 , 2000, or six months after the date of 
startup of a municipal waste combustor located at a 
small municipal waste combustor plant, whichever is 
later, and by July 1 , 1 999 or six months after the date 
of startup of a municipal waste combustor located at 
a large municipal waste combustor plant, whichever is 
later: 

(4-) £Aj Each facilit\' operator and shift supervisor 
of a municipal waste combustor shall obtain 
and maintain a current provisional operator 
certification from the American Society of 
Mechanical Engineers (ASME QRO-1-1994). 
(3^ (Bj Each facility operator and shift supervisor 
of a municipal waste combustor shall have 
completed full certification or shall have 
scheduled a full certification exam with the 
American Society of Mechanical Engineers 
(ASMEQRO-l-1'994). 
(34 IC} The owner or operator of a small or large 
municipal waste combustor plant shall not 
allow the facility to be operated at any tim e s 
time unless one of the following persons is on 
dut>' at the affected facility: 
(A^ (jj a fully certified chief facility 

operator. 

(©) tiU a provisionally certified chief 

facility operator who is scheduled to 

take fijll certification exam according to 

the schedule specified in Subparagraph 

(2) of this Paragraph, Part (13) of this 

Subparagraph, 

(Gj (jiiJ a fully certified shift supervisor, or 

(B) (iv) a provisionally certified shift 

supervisor who is scheduled to take the 

full certification exam according to the 

schedule specified in Subparagraph (2) 

of thi s Paragraph. Part (B) of this 

Subparagraph. 

If one of the persons listed in this 

Subparagraph Part leaves the affected facility 

during their operating shift, a provisionally 

certified control room operator who is onsite at 

the affected facility may fulfill the 

requirements in this Subparagraph. Part. 

fb) (2} The owner or operator of a municipal waste 

combustor located at a small or large municipal waste 

combustor plant shall develop and update on a yearly 

basis a site-specific operating manual that shall at the 

minimum address the elements of municipal waste 

combustor unit operation specified in 10 CFR 60.5 ' lb 

Paragraphs (e)( 1 ) through (o)(ll). (e)(ll) of40 CFR 

60.54b. 

(e) (3} By July 1, 1999, or six months after the date of 

startup of a municipal waste combustor located at a 

small or large municipal waste combustor plant, 

whichever is later, the owner or operator of the 



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283 



PROPOSED RULES 



municipal waste combustor plant shall compK with 
Subparagraphs (I) to (3) of this Paragraph, the 
following requirements: 

(4^ (Aj All chief facility operators, shift 
supervisors, and control room operators shall 
complete the EPA municipal waste combustor 
training course. 

{A) (_ij The requirements specified in 

Subparagraph ( 1 ) of this Paragraph Part 

(A) of this Subparagraph shall not appK 

to chief facilit> operators, shift 

supervisors, and control room operators 

who ha\e obtained full certification 

from the American Societ\' of 

Mechanical Engineers on or before JuK 

1.1998. 

(B^ liU The owner or operator may request 

that the Administrator wai\e the 

requirement specified in Subparagraph 

( 1 ) of this Paragraph Part (A) of this 

Subparagraph for chief facilitv 

operators, shift supervisors, and control 

room operators who ha\e obtained 

provisional certification from the 

American Society of Mechanical 

Engineers on or before JuK 1 . 1 998. 

(3-) [Bj The owner or operator of a municipal 

waste combustor located at a small or large 

municipal waste combustor plant shall establish 

a training program to re\iew the operating 

manual, according to the schedule specified in 

Parts (A) and (B) of this Subparagraph. 

Subparts (jj and [hj of thjs Part, w ith each 

person who has responsibilities affecting the 

operation of an affected facilitv. including the 

chief facilitv operators, shift supervisors. 

control room operators, ash handlers, 

maintenance personnel, and crane-load 

handlers. 

{A) (Ij Each person specified in 

Subparagraph (c)(2) of thi s Rul e Part 
i^ of this Subparagraph shall undergo 
initial training no later than the date 
specified in Subpart s — (c)(2)(A)(i). 
(c)(2)(B)(ii). or (c)(2)(C)(iii) of thi s 
R«+er Sub-subparts UQ through (111) of 
this Subpart, \s hichever is later, 
(i) (JQ The date six months after the 
date of startup of the affected 
facilitv'; 
fm liU JuK 1, 1999: or 
f+4+) (111) The date prior to the day 
when the person assumes 
responsibilities affecting 

municipal waste combustor unit 
operation. 
(6-) (ii) .AnnualK, following the initial 
training required b\ Part (c)(2)(A) of 



this Rul e . Subpart (i) of this Part. 
(^ (Cj The operating manual required by 
Paragraph (c) of this Rul e Subparagraph (2) of 
this Paragraph shall be kept in a readiK 
accessible location for all persons required to 
undergo training under Subparagraph (c)(2) of 
this Paragraph. Part (B) of this Subparagraph. 
The operating manual and records of training 
shall be available for inspection by the 
personnel of the Division on request. 
{4) [4} The referenced ASME exam in this Rule is 
hereb\ incorporated bv reference and includes 
subsequent amendments and editions. Copies of the 
referenced ASME exam may be obtained from the 
American Societv' of Mechanical Engineers (ASME). 
22 Lav\' Drive. Fairfield, NJ 07007, at a cost of forty- 
nine dollars (S49.00). 
(b) Hospital, Medical and Infectious Waste Incinerators. 

(1) The owner or operator of a HMIWI shall not allow the 
HMIWI to operate at any time unless a fullv trained 
and qualified HMIWI operator is accessible, either at 
the facilitv or available within one hour. The trained 
and qualified HMIWI operator may operate the 
HMIWI directlv or be the direct supervisor on one or 
more HMIWI operators. 

(2) Operator training and qualification shall be obtained 
by completing the requirements of Paragraphs (c) 
through (g) of 40 CFR Part 60.53c. 

(3) The owTier or operator of a HMIWI shall maintain, at 
the facility, all items required b\ Subparagraphs (h)( 1 ) 
through (h)( 10) of 40 CFR Part 60.53c. 

(4) The owner or operator of a HMIWI shall establish a 
program for reviewing the information required by 
Subparagraph (3 ) of this Paragraph annually \\ ith each 
HMIWT operator. The initial revieys of the 
information shall be conducted by January L 2000. 
Subsequent reyiews of the information shall be 
conducted annually. 

(5) The information required by Subparagraph (3) of this 
Paragraph shall be kept in a readily accessible location 
for ail HMIWI operators. This information, along 
yvith records of training shall be a\ailable for 
inspection by Division personnel upon request. 

(6) All HMIWI operators shall be in compliance yvith this 
Paragraph bv July 1, 2000. 

Authohn-G.S. 143-215. 3/a/II): 143-21 5. W-(a)(10). 

.1209 COMPLIANCE SCHEDULES 

(a) Except for any municipal ysaste combustor located at a 
small or large municipal waste combustor plant, plant or any 
HMIWI. the oyvner or operator of any incinerator for which 
construction began after September 30, 1991, shall be in 
compliance with this Section or Rule .1110 of this Subchapter, 
yvhichey er is applicable, before beginning operation. 

(b) Municipal Waste Combustors. 

{%^ OJ Tne owner or operator of a large municipal waste 
combustor plant shall choose one of the folloy\ing 



tt 



\i 



WU^B^ffiH 



Ai^a 



PROPOSED RULES 



three compliance schedule options: 

(4} iAJ comply with all the requirements or close 
before July 1, 1999; er 

(3) (Bj comply with all the requirements after one 
year but before three years following the date 
of issuance of a revised construction and 
operation permit, if permit modification is 
required, or after July 1, 1999 but before July 
1, 2001, if a permit modification is not 
required. If this option is chosen, then the 
owner or operator of the facility shall submit to 
the Director measurable and enforceable 
incremental steps of progress towards 
compliance which include: 

(A) tij a date by which contracts for the 
emission control system or equipment 
shall be awarded or orders issued for 
purchase of component parts; 

(B) in} a date by which on site 
construction, installation, or 
modification of emission control 
equipment shall begin; 

(G) (iii) a date by which on site 

construction, installation. or 

modification of emission control 

equipment shall be completed; 

(B) £iyj a date for initial startup of 

emissions control equipment; 
(fi) (vj a date for initial performance test(s) 

of emission control equipment; and 
(F) (vi) a date by which the facility shall be 
in compliance with this Section, which 
shall be no later than three years from 
the issuance of the p e rmit, permit; or 
{¥> (Cj close between July 1, 1999 and July 1, 
200 1 . If this option is chosen then the owner 
or operator of the facility shall submit to the 
Director a closure agreement which includes 
the date of the plant closure, 
(e) {2} Theowneroroperatorof a small municipal waste 
combustor plant shall comply with all requirements, or 
close, within three years following the date of 
issuance of a revised construction and operation 
permit, if a permit modification is required, or by July 
1, 2001, if a permit modification is not required. 

(d) (3} All municipal waste combustors located within 
large municipal waste combustor plant for which 
construction, modification, or reconstruction 
commenced after June 26, 1 987, but before September 
19, 1994, shall comply with the emission limit for 
mercury specified in Paragraph (g)(2) (g)(1) of Rule 
.1205 of this Section and the emission limit for dioxin 
and furan specified in Paragraph (m)(2) of Rule .1205 
of this Section within one year following issuance of 
a revised construction and operation permit, if a 
permit modification is required, or by July 1. 1999, 
whichever is later. 

(e) (4j TTie owner or operator shall certify to the Director 



within five days after the deadline, for each increment 
of progress, whether the required increment of 
progress has been met. 
(c) Hospital, Medical, and Infectious Waste Incinerators. 

(1) Title V Application Date. All HMlWI's subject to 
these rules shall have submitted an application for a 
permit under the procedures of 1 5 A NCAC 20 .0500. 
Title V Procedures, by January 1, 2000. 

(2) Final Compliance Date. Except for those HMIWIs 
described jn Subparagraphs (3) and (4) of this 
Paragraph, all HMIWIs subject to this Rule shall be in 
compliance with this Rule or close on or before July 
1, 2000. 

(3) Installation of Air Pollution Control Equipment. Any 
HMIWI planning to install the necessarv air pollution 
control equipment to comply with the emission 
standards in Rule .1205 of this Section shall be in 
compliance with Rule .1205 of tliis Section by 
September 15. 2002. If this option is chosen, then the 
owner or operator of the HMIWI shall submit to the 
Director measurable and enforceable incremental 
steps of progress towards compliance which include: 
(A) the submission of a petition for site specific 

operating parameters under 40 CFR 63.56c(i); 

the obtaining of services of an architectural and 

engineering firm regarding the air pollution 

control device(s); 

the obtaining of design drawings of tlie air 

pollution control device(s); 

the ordering of air pollution control device(s); 

the obtaining of the major components of the 

air pollution control device(s); 

the initiation of site preparation for the 

installation of the air pollution control 

device(s); 

the initiation of installation of the air pollution 

control device(s); 

the initial startup of the air pollution control 

device(s); and 

the initial compliance test(s) of the air pollution 

control device(s). 

(4) Petition for Extension of Final Compliance Date. 
(A) The owner or operator of an affected HMIWI 

may petition the Director for an extension of 

the compliance deadline of Subparagraph (2) 

of this Paragraph provided that the following 

information is submitted by January 1. 2000. to 

allow the Director adequate time to grant or 

deny the extension by July 1. 2000: 

(jj documentation of the analyses 

undertaken to support the need for an 

extension, including an explanation of 

why up to July 1, 2002 is sufficient time 

to comply with this Rule while July 1, 

2000 is not sufficient. The 

documentation shall also include an 

evaluation of the option to transport the 

waste offsite to a commercial medical 



(m 



(Cj 

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ID 



m 



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'3:3 



MmammMmM,m^mmMi^ 



A 



PROPOSED RULES 



W- 



uaste treatment and disposal facilit> on a temporan or 

permanent bases: and 

(ii) documentation of the measurable and 
enforceable incremental steps of 
progress listed in Subparagraph (3) of 
this Paragraph to be taken towards 
compliance w ith the emission standards 
in Rule .1205 of this Section. 

(B) The Director ma\ grant the extension if all the 
requirements in Part (A) of this Subparagraph 
are met. 

(C) If the extension is granted, the HMIWI shall be 
in compliance with this Section bv July \^ 
2002. 

Authority G.S. 143-215. 3(a)(1): 143-215. 10~(a)(4). (5}. 

SECTION .1500 - TRANSPORTATION CONFORMITY 

.1501 PURPOSE, SCOPE AND APPLICABILITY 

(a) Th e purpo se of this S e ction is to assur e th e conformity of 
transportat i on plan s , programs, and proj e cts that are d e veloped. 
fund e d, or approv e d b\ — th e Unit e d Stat e s D e partm e nt of .1503 
Tran s portation and b\ m e tropolitan planning organizations or 
oth e r r e cipi e nt s of funds und e r Titl e 23 U.S.C. or th e F e d e ral 



.1502 DEFINITIONS 

For th e purpos e s of thi s S e ction, th e d e finitions contain e d in 
' 10 CFR 5 1 .302 and th e following d e finitions appK" 



"Consultation" m e ans that on e part\ conf e rs with 
anoth e r id e ntifi e d part>'. provides all information 
n e c e ssap. to that part> ne e d e d for meaningful input, 
and con s id e r s and r es ponds to th e vi e ws of that party 
in a tim e ly, s ubstantiv e written manner prior to any 
final d e cision. At l e ast rvs'o vs'ooks s hall b e allow e d to 
submit comm e nts during con s ultation ( e xc e pt for 
notification of federal ag e nci e s and actions specifi e d 
in 10 CFR 5 1 . 4 02 that onl\ r e quir e notification) and 
s uch comm e nt s and writt e n r e spons e s shall b e made 
part of th e final docum e nt. 

(3^ "Stat e or local proj e ct" m e ans any highway or transit 

proj e ct which is proposed to r e c e iv e onl\ funding 
assistance (r e c e iv e s no f e d e ral funding) or approval 
through th e Stat e or any local transportation program. 



.4ulhoht\-G.S. 143-215. 3(a)(1): 143-215. W(a)(10). 



TRANSPORTATION CONFORMITY 
DETERMINATION 



(a) Conformity analys e s, det e rminations, and r e d e t e rmination s 
Transit Act ( 4 9 U.S.C. 1601 e t s e q.). or Stat e or Local only for tran s portation plan s , transportation improv e m e nt programs- 
s ourc es of funds, with all plans r e quir e d of ar e as d e signat e d as FHWA FTA proj e cts, and Stat e or local proj e cts shall b e mad e 
nonattainm e nt or maintenanc e und e r 10 CFR 8 1 .331 and list e d according to th e r e quir e m e nts of 40 CFR 51.100 and shall 



in Paragraph (b) or (c) of this Rul e . 



comply with th e applicabl e r e quir e m e nts of 40 CFR 5 1 . 4 56 and 



(b) This S e ction appli e s to th e e mission s of volatil e organic 5 1 . 4 5 8 . — For th e purpos e s of this Rul e . Stat e or local proj e cts 

shall b e subj e ct to th e same r e quir e m e nts under 10 CFR Part 5 1 



compound s and nitrog e n oxid e s in th e following ar e as: 

fH David s on County. 

f3-) Durham Counry. 

(5-) Forsyth County. 

(-4-) Gaston Countv. 

iS^ Guilford County. 

(4^ Meckl e nburg County. 

^7^ Wak e County. 

f8) Dutch\ ill e Township in Granvill e County, and 



a s FHWA FTA proj e cts 



(^ 



B e for e — making — a — con form its — d e t e rmination. — the 



metropolitan — planning — organizations. — leeal — transportation 
d e partm e nts. North Carolina D e partm e nt of Transportation. 
Unit e d Stat e s D e partm e nt of Transportation, th e Division of 
Environm e ntal Manag e m e nt, local air pollution control ag e nci e s, 
and Unit e d Stat e s Environmental Prot e ction Ag e ncy shall 
con s ult with e ach oth e r on matt e rs d es crib e d in — 1 CFR 
{^ — that part of Davi e County bound e d by th e Yadkin 51. '102(c). Consultation shal l b e gin as e arly as possibl e in th e 
Riv e r. Dutchman s Cre e k. North Carolina Highway d e v e lopm e nt of the e missions analysis us e d to support a 



8 01. Fulton Cr ee k, and back to th e Yadkin Riv e r, 
(c) Thi s S e ction appli es to th e e missions of carbon monoxid e 
in th e following ar e as: 

(4-) Durham County. 

(2^ Forsyth County. 

{^ M e ckl e nburg County, and 

(4^ Wak e County. 



conformity d e t e rmination. — Th e ag e ncy that p e rforms th e 
e missions analy s i s shall mak e th e analysis availabl e to th e 
Division of Environm e ntal Manag e m e nt and th e g e n e ral public 
for comm e nts: at least two weeks shall b e allovs e d for r e vi e w 
and comm e nt on th e e mis s ions analysis. — Th e ag e ncy that 
p e rforms th e e missions analysis shall address all comm e nts 
received and th e s e comm e nts and r e spon se s thereto shall b e 



(d) This Section applies, in the areas id e ntifi e d in Paragraph includ e d in th e final docum e nt. In th e e v e nt that the Division of 



Enxironm e ntal Manag e m e nt disagre e s with th e r es olution of it s 
comm e nts, th e conflict may be escalat e d to th e Gov e rnor within 
11 dass and shall b e r e solv e d in accordanc e with 4 CFR 



(b) or (c) of this Rul e for th e pollutants id e ntifi e d in Paragraph 

(b) or (c) of this Rul e , to th e adoption, acc e ptanc e , approval, or 

s upport of transportation plans, tran s portation improv e m e nt 

programs, and FHWA FTj'\ proj e ct s for which conformit;> 5 1 . 1 02(d). Th e 1 1 day app e al p e riod shall b e gin w hen th e North 

d e t e rminations ar e r e quir e d und e r 10 CFR 51.30 1 and all other 

Stat e or locally only funded transportation proj e ct s w ith such 

e xc e ptions as allowed by 10 CFR 51.301(c). 51. 1 60. or 51.462. 



.Authorities. 143-215. 3(a)(1): 143-215. 10~(a)(10). 



Carolina Departm e nt of Transportation or th e m e tropolitan 
planning organization notifi e s th e Dir e ctor in writing of th e 
r e solution of th e comments. Any consultation undertaken aft e r 
th e conformity d e termination is mad e s hall include th e Division 
of Environm e ntal Managem e nt. 



286 



\ORTH CAROLIX4 REGISTER 



Augusts, 1998 



13: 



PROPOSED RULES 



(c) The ag e ncy that p e rform s the conformit>' analysis shall 
notify' th e Division of Environm e ntal Manag e m e nt of: 

(4^ — any chang e s in planning or analysis assumptions 
(including land u s e and vehicle mil e s trav e l e d (VMT) 
for e ca s t s ), and 
(3) — any revisions to transportation plans or tran s portation 
improv e m e nt plan s that add, dolote. or change proj e cts 
that r e quir e a now emissions analysis (including 
d e sign scope and dat e s). 
Th e ag e ncy that performs th e conformity analysis s hall allow th e 
Division of Environm e ntal Manag e m e nt at l e a s t two w ee k s to 
review and comm e nt on th e propos e d change. Comm e nts mad e 
by th e Division of Environmental Manag e ment and respons e s 
th e r e to mad e by th e ag e ncy shall b e come part of th e final 
planning docum e nt. 

(d) Tran s portation plans shall satisfy th e r e quir e m e nts of ^0 

CFR — 51. 4 4 . Transportation — plans — an^ — transportation 

improvement programs shall satisiy' th e fiscal con s traint s 



s pecified in "10 CFR 51.^0 8 . Transportation plan s , programs, 
and — FHWA/FTA — proj e cts — shaH — satisfy' — the — applicabl e 
requir e m e nts of '10 CFR 5 1 . 4 1 through 5 1 . 448 . 

( e ) No r e cipi e nt of f e d e ral fund s d es ignat e d und e r Titl e 23 
U.S.C. or th e F e d e ral Transit Act s hall adopt or approv e , nor any 
oth e r p e rson construct, a r e gionally s ignificant highway or transit 
proj e ct, r e gardl e ss of funding sourc e , unl e s s th e r e i s a curr e ntly 
conforming transportation plan and transportation improv e m e nt 
program consist e nt with th e r e quir e m e nt s of 4 CFR 5 1 .'120 and 
th e proj e ct conform s with th e applicabl e imp le m e ntation plan 
consist e nt with th e r e quir e m e nts of '10 CFR 51. '1 50. 

(f) Th e d e gr ee of sp e cificity r e quir e d in a transportation plan 
and th e sp e cific trav e l n e twork assum e d for air qualit>' mod e ling 
shall not pr e clud e th e consid e ration of alt e rnativ e s in th e 
National Environm e ntal — Policy Act of 1969 proc e ss, in 
accordanc e with '10 CFR 5 1 .'106. 

(g) Wh e n assisting or approving any action with air quality 

r e lat e d cons e qu e nc e , th e F e d e ral Highway Administration and SECTION .2000 - TRANSPORTATION CONFORMITY 
th e F e d e ral Transit Administration of th e D e partm e nt of 



.1601 PURPOSE, SCOPE AND APPLICABILITY 

(a) The purpose of this Section is also to assure that a federal 
action conforms with all plans required of areas designated as 
nonattainment or maintenance under 40 CFR 8 1 .334 and listed 
in Paragraph (b) or (c) of this Rule. No department, agency, or 
instrumentality of the Federal Government shall engage in, 
support in any way or provide financial assistance for, license or 
permit, or approve any activity which does not conform to these 
maintenance plans. 

(b) This Section applies to the emissions of volatile organic 
compounds and nitrogen oxides in the following areas; 

(1) Davidson County, 

(2) Durham County, 

(3) Forsyth County, 

(4) Gaston County, 

(5) Guilford County, 

(6) Mecklenburg County, 

(7) Wake County, 

(8) Dutchville Township in Granville County, and 

(9) that part of Davie County bounded by the Yadkin 
River. Dutchmans Creek. North Carolina Highway 
801. Fulton Creek, and back to the Yadkin River. 

(c) This Section applies to the emissions of carbon monoxide 
in the following areas: 

( 1 ) Durham County, 

(2) Forsyth County, 

(3) Mecklenburg County, and 

(4) Wake County. 

(d) This Section applies, in the areas identified in Paragraph 
(b) or (c) of this Rule for the pollutants identified in Paragraph 
(b) or (c) of this Rule, to federal actions not covered by Section 
.2000 T+400 of this Subchapter. 

Authority G.S. 143-2l5.3fa)(l): 143-215. I07(a)(I0). 



Transportation shall giv e prioritv' to the impl e m e ntation of tho se 
transportation portions of an applicabl e impl e m e ntation plan 
pr e par e d to attain and maintain th e national ambi e nt air quality 



.2001 PURPOSE, SCOPE AND APPLICABILITY 

(a) Tlie purpose of this Section is to assure the conformity of 
transportation plans, programs, and projects that are developed. 



standards. — This priority' shall b e con s i s t e nt with s tatutory funded, or approved by the United States Department of 



r e quir e m e nts for allocation of funds among stat es or oth e r 
jurisdictions. 

Authority G.S. 143-215. 3(a)(1): 143-215. 107(a)(10). 

.1504 DETERMINING TRANSPORTATION- 
RELATED EMISSIONS 

(a) — Th e proc e dur e s in 4 CFR 51. 4 52 shall b e us e d to 
determin e r e gional transportation r e lat e d e mi s sions. 

{kt) — Th e proc e dur e s in ^0 CFR 51. 4 5 4 shall b e u se d to 
d e termin e localiz e d carbon monoxide conc e ntrations (hot s pot 
analysis). 

Authority: G.S. 143-21 5.3(a)(1): 143-215. 107(a)(10). 



SECTION .1600 - GENERAL CONFORMITY 



Transportation and by metropolitan planning organizations or 
other recipients of funds under Title 23 U.S.C. or the Federal 
Transit Act (49 U.S.C. 1601 et seq.). or State or Local only 
sources of funds, with all plans required of areas designated as 
nonattainment or maintenance under 40 CFR 8 1 .334 and listed 
in Paragraph (b) or (c) of this Rule. 

(b) This Section applies to the emissions of volatile organic 
compounds and nitrogen oxides in the following areas: 

(1) Davidson County, 

(2) Durham County, 

(3) Forsyth County, 

(4) Gaston County, 

(5) Guilford County, 

(6) Mecklenburg County, 
(Tj Wake County, 

(8) Dutchville Township in Granville County, and 

(9) that part of Davie County bounded by the Yadkin 



^ 



mmMMfrnmiaB^^imMSk 



A 



PROPOSED RULES 



River. Dutchmans Creek. North Carolina High\\a\ 
801. Fulton Creek, and back to the Yadi<in Ri\er 

(c) This Section applies to the emissions of carbon monoxide 
in the following areas: 

(1) Durham County. 

(2) Fors\th Countv 

(3) Mecklenburg Counn. and 
(4J WakeCounty, 

(d) This Section applies, m the areas identified in Paragraph 
(b) or (cj of this Rule for the pollutants identified [n Paragraph 
(b) or <c) of this Rule, to: 

( 1 ) the adoption, acceptance. appro\al. or support of 
transportation plans and transportation plan 
amendments developed pursuant to 23 CFR Part 450 
or 49 CFR Part 613 by a metropolitan planning 
organization or the United States Department of 
Transportation; 

(2) the adoption, acceptance. appro\al. or support of 
transportation impro\ement programs or amendments 
to transportation improvement programs pursuant to 
23 CFR Part 450 or 49 CFR Part 613 bv a 
metropolitan planning organization or the United 
States Department of Transportation: or 

(3) the approval, funding, or implementation of 
FHWA FTA projects. 

Conformit\ determinations are not required under this Section 
for indi\idual projects that are not FHWA FTA projects. 
Ho\\e\er. 40 CFR 93.121 shall appK to these projects if they are 
regionalK significant projects. 

Aulhorin- G.S. 143-215. 3(a)( 1): 143-215. WlaXlO). 

.2002 DEFINITIONS 

For the purposes ot~ thjs Section, the definitions contained [n 
40 CFR 93.101 and the following definitions appK: 

( 1 > "Consultation" means that one part\ confers \sith 
another identified part\. pro\ides all information 
necessary to that partA needed for meaningful input, 
and considers and responds to the \ie\\s of that garty 
in a timeh. substanti\e written manner prior to any 
final decision. 

(2) "RegionalK significant project" means a 
transportation project (other than an e.xempt project 
under 40 CFR 93.126) that is on a facility that serves 
regional transportation needs (such as access to and 
from the area outside of the region, major activity 
centers m the region, major planned developments 
such as ney\ retail malls and sports complexes, or 
transportation terminals as vveil as most terminals 
themsehes) and would normally be included m the 
modeling of a metropolitan area's transportation 
neUsork. including at a minimum all principal arterial 
highways and all fixed guide way transit facilities that 
offer an altemati\e to regional highyyay tray el. 

(3) "Regionally significant State or local project" means 
any highyvav or transit project that js a regionally 
significant project and that is proposed to receiy e onl\ 
funding assistance ( receiy es no federal funding) or 



approy al through the State or any local program. 

Authority G.S. 143-2 15. 3(al(l): 143-21 5. W(al(10}. 

.2003 TRANSPORTATION CONFORMITY 
DETERMINATION 

(a) Conformity anaK ses. determinations, and redeterminations 
for transportation plans, transportation improvement programs. 
FHWA FTA projects, and State or local regionally significant 
projects shall be made according to the requirements of 40 CFR 
93.104 and shall comply with the applicable requirements of 40 
CFR 93.124 and 93.125. For the purposes of this Rule, 
regionally significant State or local projects shall be subject to 
the same requirements under 40 CFR Part 93 as FHWA^FTA 
projects except that State Environmental Policy Act procedures 
and requirements shall be substituted for National 
Environmental Policy Act procedures and requirements. 
Regionally significant State or local projects subject to this 
Section for y\hich the State Environmental Policy Act process 
and a con form in determination have been completed may 
proceed toward implementation yvithout further conformity 
determination unless more than three years have elapsed since 
the most recent major step ( State Environmental Policy Act 
process completion, start of final design, acquisition of a 
significant portion of the right-of-yvav. or approval of the plans, 
specifications, and estimates) occurred. All phases of these 
projects considered jn the conformity determination are also 
included if these phases y\ere for the purpose of funding final 
design, right-of-yvav acquisition, construction, or any 
combination of these phases. 

(b) Before making a conformity determination, the 
metropolitan planning organizations, local transportation 
departments. North Carolina Department of Transportation. 
United States Department of Transportation, the Diyision of Air 
Qualin. local air pollution control agencies, and United States 
Eny ironmental Protection Agency shall consult w ith each other 
on matters described in 40 CFR 93.105(c). Consultation shall 
begin as early as possible in tine deyelopment of tlie emissions 
analysis used to support a conformity determination. The agency 
that performs the emissions analysis shall make the analysis 
available to the Division of AJr Quality and the general public 
for comments: at least 21 days shall be allowed for revieyy and 
comment on the emissions analysis. The agency that performs 
the emissions analysis shall address all comments received and 
these comments and responses thereto shall be included in the 
final document. If the Div ision of Air Quality disagrees with the 
resolution of its comments, the confiict may be escalated to the 
Go\emor ysithin 14 days and shall be resolved in accordance 
with 40 CFR 93.105(d). The 14-dav appeal period shall begin 
yvhen the North Carolina Department of Transportation or the 
metropolitan planning organization has confirmed receipt bv the 
Director of the Diyision of Air Qualin of thie metropolitan 
planning organization's resolution that determines conformity. 

(c) The agency that performs the conformity analysis shall 
notify the Division of Air Quality of: 

( 1) any changes rn planning or analysis assumptions 
[including land use and y chicle miles traveled ( VMT) 
forecasts], and 



^fi^^M^H 



aust 3. 1998 



J 



M 



PROPOSED RULES 



(2) any revisions to transportation plans or transportation 

improvement plans tiiat add, delete, or change projects 

that require a new emissions analysis (including 

design scope and dates). 

Comments made by the Division of Air Quality and responses 

thereto made by the agency shall become part of the final 

planning docurrient. 

(d) Transportation plans shall satisfV' the requirements of 40 
CFR 93.106. Transportation plans and transportation 
improvement programs shall satisfy the fiscal constraints 
specified in 40 CFR 93.108. Transportation plans, programs. 
and FHWA/FTA projects shall satisfy the applicable 
requirements of 40 CFR 93.109 through 93.1 18. 

(e) A recipient of federal funds designated under Title 23 
U.S.C. or the Federal Transit Act shall not adopt or approve a 
regionally significant highway or transit project, regardless of 
funding source, unless there is a currently conforming 
transportation plan and transportation improvement program 
consistent with the requirements of 40 CFR 93.1 14 and the 
project conforms with the applicable implementation plan 
consistent with the requirements of 40 CFR 93. 121 . 

(f) The degree of specificity required in a transportation plan 
and the specific travel network assumed for air quality modeling 
shall not preclude the consideration of alternatives in the 
National Environmental Policy Act of 1969 process, jn 
accordance with 40 CFR 93.107. 

(g) When assisting or approving any action with air quality- 
related consequence, the Federal Highway Administration and 
the Federal Transit Administration of the Department of 
Transportation shall give priorits to the implementation of those 
transportation portions of an applicable implementation plan 
prepared to attain and maintain the national ambient air quality 
standards as provided under 40 CFR 93. 1 03. This priority shall 
be consistent with statutory requirements for allocation of funds 
among states or other jurisdictions. 

Authority- G.S. 143-215.3ia)(ll: 143-215. lO^laXlO). 

.2004 DETERMINING TRANSPORTATION- 
RELATED EMISSIONS 

(a) The procedures in 40 CFR 93.122 shall be used to 
determine regional transportation-related emissions. 

(M Ihe procedures in 40 CFR 93.123 shall be used to 
determine localized carbon monoxide concentrations (hot-spot 
analysis). 

Authority^ G.S. 143-21 5.3(a)(1): 143-215. 107fa)(10). 

.2005 MEMORANDUM OF AGREEMENT 

The Division of Air Quality shall develop and maintain a 
memorandum of agreement with the North Carolina Department 
of Transportation, the metropolitan planning organizations of the 
areas identified in Rule .2001(b) or (c) of this Section, and the 
Federal Highway Administration to describe the participation 
and responsibilities of each of these agencies in implementing 
the requirements of this Section and 40 CFR Part 93. The 
memorandum of agreement shall include: 

(1) consultation procedures described under 40 CFR 



93.105: 

(2) the time allowed for each agency to review and 
comment on or to respond to comments on 
transportation improvement programs, transportation 
plans, and transportation projects; and 

(3) consultation procedures for the development of State 
Implementation Plans that relate to transportation. 

Authority G.S. 143-2 15.3(a)(1): 143-215. 107(a)(10). 

SUBCHAPTER 2Q - AIR QUALITY PERMIT 
PROCEDURES 

SECTION .0100 - GENERAL PROVISIONS 

.0102 ACTIVITIES EXEMPTED FROM PERMIT 
REQUIREMENTS 

(a) If a source is subject to any of the following rules, then the 
source is not exempted from permit requirements, and the 
exemptions in Paragraph (b) of this Rule do not apply: 

( 1 ) new source performance standards under 1 5 A NCAC 
2D .0524 or 40 CFR Part 60, except: 

(A) 40 CFR Part 60, Subpart Dc, industrial, 
commercial, and institutional steam generating 
units located at a facility not required to be 
permitted under Section .0500 of this 
Subchapter; 

(B) 40 CFR Part 60. Subpart Kb. volatile organic 
liquid storage vessels located at a facility not 
required to be permitted under Section .0500 of 
this Subchapter; er 

(C) 40 CFR Part 60, Subpart AAA, new residential 
wood heaters; or 

(D) 40 CFR Part 60. Subpart WWW, municipal 
solid waste landfills not required to be 
permitted under Section .0500 of this 
Subchapter; 

(2) national emission standards for hazardous air 
pollutants under 1 5A NCAC 2D . 1 1 10 or 40 CFR Part 
61. except asbestos demolition and renovation 
activities; 

(3) prevention of significant deterioration under 15A 
NCAC 2D .0530; 

(4) new source review under 15A NCAC 2D .0531 or 
.0532; 

(5) sources of volatile organic compounds subject to the 
requirements of 1 5A NCAC 2D .0900 that are located 
in Mecklenburg County in accordance with 15A 
NCAC 2D .0902; 

(6) sources required to apply maximum achievable 
control technology (MACT) for hazardous air 
pollutants under 1 5A NCAC 2D . 1 1 09 or . 1 1 1 1 or 40 
CFR Part 63 that are required to have a permit under 
Section .0500 of this Subchapter; or 

(7) sources at facilities subject to 1 5 A NCAC 2D . 1 1 00. 
(If a source does not emit a toxic air pollutant for 
which the facility at which it is located has been 
evaluated, it shall be exempted from needing a permit 



mBm^MUMMaaS^m^imMik 



a 



PROPOSED RULES 



if it qualifies for one of the exemptions in Paragraph 

(b) of this Rule). 

(b) The following activities do not need a permit or permit 

modification under this Subchapter; ho\ve\er. the Director ma\ 

require the owner or operator of these activities to register them 

under 15A NCAC 2D .0200: 

(1) activities exempted because of categor) (These 
activities shall not be included on the permit 
application or in the permit.): 

(A) maintenance, upkeep, and replacement: 

(i) maintenance, structural changes, or 
repairs which do not change the capacity- 
of such process. fuel-burning, 
refuse-burning, or control equipment, 
and do not involve an\ change in qualit) 
or nature or increase in quantity of 
emission of regulated air pollutants; 

(ii) housekeeping activities or building 
maintenance procedures, including 
painting buildings, resurfacing floors, 
roof repair, washing, portable vacuum 
cleaners, sweeping, use and associated 
storage of janitorial products, or 
insulation removal; 

(iii) use of office supplies, supplies to 
maintain copying equipment, or 
blueprint machines; 

(iv) use of fire fighting equipment; 
(v) paving parking lots; or 

(vi) replacement of existing equipment w ith 
equipment of the same size, type, and 
function that does not result in an 
increase to the actual or potential 
emission of regulated air pollutants and 
that does not affect the compliance 
status, and \s ith replacement equipment 
that fits the description of the existing 
equipment in the permit, including the 
application, such that the replacement 
equipment can be operated under that 
permit without any changes in the 
permit; 

(B) air conditioning or ventilation: comfort air 
conditioning or comfort ventilating systems 
which do not transport, remove, or exhaust 
regulated air pollutants to the atmosphere; 

(C) laboratory activities: 

(i) bench-scale, on-site equipment used 
exclusively for chemical or physical 
analysis for quality control purposes, 
staff instruction, water or wastewater 
analyses. or non-production 

environmental compliance assessments; 

(ii) bench-scale experimentation, chemical 
or physical analyses, training or 
instruction from not-for-profit, non- 
production educational laboratories; 

(iii) bench-scale experimentation, chemical 



or physical analyses, training or 
instruction from hospitals or health 
laboratories pursuant to the 
determination or diagnoses of illness; or 
(iv) research and development laboratory 
activities that are not required to be 
permitted under Section .0500 of this 
Subchapter provided the activity 
produces no commercial product or 
feedstock material; 

(D) storage tanks: 

(i) storage tanks used solely to store fuel 
oils, kerosene, diesel, crude oil, used 
motor oil. lubricants, cooling oils, 
natural gas or liquifi e d liquefied 
petroleum gas; 

(ii) storage tanks used to store gasoline for 
which there are no applicable 
requirements except Stage 1 controls 
under 15A NCAC 20 .0928; 

(iii) storage tanks used solely to store 
inorganic liquids; or 

(iv) storage tanks or vessels used for the 
temporary containment of materials 
resulting from an emergency response to 
an unanticipated release of hazardous 
materials; 

(E) combustion and heat transfer equipment: 

(i) space heaters burning distillate oil. 
kerosene, natural gas. or liquifi e d 
liquefied petroleum gas operating by 
direct heat transfer and used solely for 
comfort heat; 
(ii) residential wood stoves, heaters, or 

fireplaces; 
(iii) hot water heaters which are used for 
domestic purposes only and are not used 
to heat process water; 

(F) wastewater treatment processes: industrial 
wastewater treatment processes or municipal 
wastewater treatment processes for which there 
are no applicable requirements; 

(G) gasoline distribution: 

(i) gasoline service stations or gasoline 
dispensing facilities that are not required 
to be permitted under Section .0500 of 
this Subchapter; or 
(ii) gasoline dispensing equipment at 
facilities required to be permitted under 
Section .0500 of this Subchapter if the 
equipment is used solely to refuel 
facility equipment; 
(H) dispensing equipment: equipment used solely 
to dispense diesel fuel, kerosene, lubricants or 
cooling oils; 
(I) solvent recycling: portable solvent distillation 
systems used for on-site solvent recycling if: 
(i) The portable solvent distillation system 



A 



^i^^^^H 



^ 



m 



PROPOSED RULES 



is not: 



(J) 



(K) 



m 



(ii) 



(I) owned by the facility, and 
(II) operated at the facility for more 
than seven consecutive days; and 
The material recycled is: 



(I) 

(H) 



(III) 



processes: 
(i) 



recycled at the site of origin, 
the original material is non- 
photochemically reactive in 
accordance with 15A NCAC 2D 
.0518, Miscellaneous Volatile 
Organic Compound Emissions, 
and 

all make up material is non- 
photochemically reactive in 
accordance with 15A NCAC 2D 
.0518; 



(ii) 
(iii) 

(iv) 



(V) 



small electric motor bum-out ovens with 

secondary combustion chambers or 

afterburners; 

small electric motor bake-on ovens; 

bum-off ovens for paint-line hangers 

with afterbumers; 

hosiery knitting machines and 

associated lint screens, hosiery dryers 

and associated lint screens, and hosiery 

dyeing processes where bleach or 

solvent dyes are not used; 

blade wood planers planing only green 

wood; 
solid waste landfills: municipal solid waste 
landfills not required to be permitted under 
Section .0500 of this Subchapter (This Part 
does not apply to flares and other sources of 
combustion at solid waste landfills.); 
(Lj miscellaneous; 
(i) motor vehicles, aircraft, marine vessels, 

locomotives, tractors or other 

self-propelled vehicles with internal 

combustion engines; 
(ii) non-self-propelled non-road engines, 

except generators, regulated by mles 

adopted under Title 11 of the federal 

Clean Air Act; 
(iii) equipment used for the preparation of 

food for direct on-site human 

consumption; 
(iv) a source whose emissions are regulated 

only under Section 1 12(r) or Title VI of 

the federal Clean Air Act that is not 

required to be permitted under Section 

.0500 of this Subchapter; 
(v) exit gases from in-line process 

analyzers; 
(vi) stacks or vents to prevent escape of 

sewer gases from domestic waste 

through plumbing traps; 
(vii) refrigeration equipment that is 



consistent with Section 601 through 618 
of Title VI (Stratospheric Ozone 
Protection) of the federal Clean Air Act, 
40 CFR Part 82, and any other 
regulations promulgated by EPA under 
Title VI for stratospheric ozone 
protection, except those units used as or 
in conjunction with air pollution control 
equipment; 
(viii) equipment not vented to the outdoor 
atmosphere with the exception of 
equipment that emits volatile organic 
compounds; 
(ix) equipment that does not emit any 

regulated air pollutants; 

(x) facilities subject only to a requirement 

under 40 CFR Part 63 that are not 

required to be permitted under Section 

.0500 of this Subchapter (This Subpart 

does not apply when a control device is 

used to meet a MACT or GACT 

emission standard.); ef 

(xi) sources for which there are no 

applicable requirements and that are at a 

facility not required to be permitted 

under Section .0500 of this Subchapt e r. 

Subchapter; or 

(xii) sources for which there are no 

applicable requirements and that are at a 

facility required to be permitted under 

Section .0500 of thjs Subchapter 

following the procedures in Paragraph 

(c) of this Rule; 

(2) activities exempted because of size or production rate 

(These activities shall not be included in the permit. 

If the facility is subject to the permitting procedures 

under Section .0500 of this Subchapter, these 

activities shall be listed on the permit application; 

otherwise, these activities shall not be listed on the 

permit application.); 

(A) storage tanks: 

(i) above-ground storage tanks with a 
storage capacity of no more than 1 100 
gallons storing organic liquids with a 
tme vapor pressure of no more than 10.8 
pounds per square inch absolute at 
70°F;or 

(ii) underground storage tanks with a 
storage capacity of no more than 2500 
gallons storing organic liquids with a 
true vapor pressure of no more than 10.8 
psi absolute at 70 °F; 

(B) combustion and heat transfer equipment 
located at a facility not required to be permitted 
under Section .0500 of this Subchapter: 

(i) fuel combustion equipment, except for 
intemal combustion engines, firing 
exclusively kerosene. No. 1 fuel oil. No. 



Mm^mm^U^^m^m 



m 



PROPOSED RULES 



2 fuel oil. equivalent unadulterated 
fuels, or a mixture of these fuels or one 
or more of these fuels mixed of with 
natural gas or l iquifi e d liquefied 
petroleum gas w ith a heat input of less 
than: 
(1) 10 million BTU per hour for 

which construction, modification. 

or reconstructed commenced 

after June 9. 1989: or 
(II) 30 million BTU per hour for 

which construction, modification. 

or reconstruction commenced 

before June 10. 1989; 
(ii) fuel combustion equipment, except for 
internal combustion engines, firing 
exclusively natural gas or liquifi e d 
liquefied petroleum gas or a mixture of 
these fuels with a heat input rating less 
than 65 million BTU per hour: 
(iii) space heaters burning waste oil if 

(I ) The heater bums only oil that the 

owner or operator generates or 

used oil from do-it-\ourself oil 

changers who generate used oil 

as household wastes: 
(II) The heater is designed to have a 

maximum capacity of not more 

than 500.000 Btu per hour: and 
(III) The combustion gases from the 

heater are vented to the ambient 

air: 
(iv) emergencv use generators and other 
internal combustion engines not 
regulated b\ rules adopted under Title II 
of the federal Clean Air Act. except 
self-propelled vehicles, that have a rated 
capacit) of no more than: 
(I) 310 kilov\ans (electric) or 460 

horsepower for natural gas-fired 

engines. 
(II) 830 kilowatts (electric) or 1150 

horsepov\er for l i quifi e d 

liquefied petroleum gas-fired 

engines. 

(III) 270 kilowatts (electric) or 410 
horsepower for diesel-fired or 
kerosene-fired engines, or 

(IV) 21 kilowatts (electric) or 31 
horsepower for gasoline-fired 
engines: 

(v) portable generators and other portable 
equipment vsith internal combustion 
engines not regulated by rules adopted 
under Title II of the federal Clean Air 
Act. except self-propelled vehicles, that 
operate at the facility no more than a 
combined 350 hours for an\ 365-dav 



period provided the generators or 
engines have a rated capacity of no more 
than 750 kilowatt (electric) or 1100 
horsepov\er each and provided records 
are maintained to verify the hours of 
operation: 
(vi) peak shaving generators that produce no 
more than 325,000 kilowatt-hours of 
electrical energy for any 12-month 
period provided records are maintained 
to verify the energy production on a 
monthly basis and on a 12-month basis: 

(C) gasoline distribution: bulk gasoline plants v\ith 
an average dailv throughput of less than 4000 
gallons that is not required to be permitted 
under Section .0500 of this Subchapter: 

(D) processes: 

(i) printing, paint sprav booths or other 
painting or coating operations without 
air pollution control devices (water 
wash and filters that are an integral part 
of the paint sprav booth are not 
considered air pollution control devices) 
located at a facilitv whose facility-wide 
actual emissions of: 
(I) Volatile organic compounds are 

less than five tons per year, and 
(11) Photochemically reactive solvent 

emissions under 1 5A NCAC 2D 

.05 1 8 are less than 30 pounds per 

dav: 
prov ided the facility is not required to 
be permitted under Section .0500 of this 
Subchapter: 
(ii) saw mills sawmills that saw no more 
than 2.000.000 board feet per vear 
provided only green v\ ood is sawed; 
(iii) perchloroethvlene dn. cleaners that 
consum e emits less than 13.000 pounds 
(965 gallons) of perchloroethylene per 
year: 
(iv) electrostatic dr\ powder coating 
operations with filters or powder 
recovery systems including electrostatic 
dry povsder coating operations equipped 
v s ith powd e r recov e rv including curing 
ovens with a heat input of less than 
10.000.000 BTU per hour: 

(E) miscellaneous: 

(i) anv source vsithout an air pollution 

control d e vic e whose potential 

emissions of particulate, sulfur dioxide, 
nitrogen oxides, volatile organic 
compounds, and carbon monoxide 
before air pollution control devices, i.e.. 
potential uncontrolled emissions, are 
each no more than five tons per v ear and 
whose potential emissions of hazardous 



707 



^O'^rHCMO.U^AH.aiSTBH 



MMMSk 



m 



PROPOSED RULES 



air pollutants are below their lessor quantity cutoff except: 
(1) storage tanks, 

(II) fijel combustion equipment, 
excluding fuel combustion 
equipment at facilities required to 
have a permit under Section 
.0500 of this Subchapter, firing 
exclusively kerosene. No. 1 fuel 
oil. No. 2 fuel oil. equivalent 
unadulterated fuels, natural gas, 
liquifi e d liquefied petroleum gas, 
or a mixture of these fuels. 

(III) space heaters burning waste oil, 

(IV) generators, excluding emergency 
generators, or other non-self- 
propelled internal combustion 
engines, 

(V) bulk gasoline plants. 
(VI) printing, paint spray booths, or 

other painting or coating 

operations. 
(VII) sawmills, 
(VIII) perchloroethylene dry cleaners, 

or 
(IX) electrostatic dry powder coating 

operations, 
provided that the total potential 
emissions of particulate, sulfur dioxide, 
nitrogen oxides, volatile organic 
compounds, and carbon monoxide from 
the facility are each less than 40 tons per 
year and the total potential emissions of 
all hazardous air pollutants are below 
their lesser quantity cutoff emission 
rates or provided that the facility has an 
air quality permit: 
(ii) any facility without an air pollution 
control d e vic e whose actual emissions 
of particulate, sulfur dioxide, nitrogen 
oxides, volatile organic compounds, or 
carbon monoxide before air pollution 
control devices, i.e.. uncontrolled 
emissions, are each less than five tons 
per year, whose potential emissions of 
all hazardous air pollutants are below 
their lesser quantity cutoff emission 
rates, and which is not required to have 
a permit under Section .0500 of this 
Subchapter; 
(iii) any source that only emits hazardous air 
pollutants that are not also a particulate 
or a volatile organic compound and 
whose potential emissions of hazardous 
air pollutants are below their lesser 
quantity cutoff emission rates; or 
(iv) any incinerator covered under Paragraph 
(d)of 15ANCAC2D.1201. 
(F) case-by-case exemption: 



(i) for activities located at facilities not 
required to have a permit under Section 
.0500 of this Subchapter, activities that 
the applicant demonstrates to the 
satisfaction of the Director: 
(I) to be negligible in their air 

quality impacts. 
(II) not to have any air pollution 

control device, and 
(III) not to violate any applicable 
emission control standard when 
operating at maximum design 
capacity or maximum operating 
rate, whichever is greater; or 
(ii) for activities located at facilities 
required to have a permit under Section 
.0500 of this Subchapter: activities that 
the applicant demonstrates to the 
satisfaction of the Director: 
(1) to be negligible in their air 

quality impacts. 
(11) not to have any air pollution 
control device, 

(III) not to violate any applicable 
emission control standard when 
operating at maximum design 
capacity or maximum operating 
rate, whichever is greater, 

(IV) the potential emissions of each 
criteria pollutant is less than five 
tons per year, and 

(V) the potential emissions of each 

hazardous air pollutant is less 

than 1 000 pounds per year. 

(c) The Director may exempt a source for which there are no 

applicable requirements at a facility required to have a permit 

under Section .0500 of this Subchapter from needing a permit if: 

( 1 ) The Director finds that emissions from the source are 
not likeK to cause or contribute to any violation of an 
ambient air quality standard under 15A NCAC 2D 
.0400. or 40 CFR Part 50; and 

(2) The proposed permit exemption is noticed along with 
the initial draft permit or the next draft permit revision 
requiring public notice or draft permit renewal, 
whichever occurs first, and js subject to public 
comment procedures in Section .0500 of this 
Subchapter. 

If during the comment period EPA or any other person provides 
a satisfactory explanation to the Director of why the source 
should be permitted, the Director shall include the source in the 
facility's permit; otherwise, the Director shall not include the 
source in the facility's pennit. 

fe) (dj Because an activity is exempted from being required 
to have a permit does not mean that the activity is exempted from 
any applicable requirement or that the owner or operator of the 
source is exempted from demonstrating compliance with any 
applicable requirement. 

(4) (ej Emissions from stationary source activities identified 



msammmMasa^^m^^ 



il 



PROPOSED RULES 



in Paragraph (b) of this Rule shall be included in determining 
compliance with the toxic air pollutant requirements under 1 5A 
NCAC 2D .1100 or 2Q tOTOO. .0700 according to \5A NCAC 
2Q .0702 (exemptions from air to.\ic permitting). 

fe) [f) The owner or operator of a facilit\ or source claiming 
an exemption under Paragraph (b) of this Rule shall pro\'ide the 
Director documentation upon request that the facility or source 
is qualified for that exemption. 



Author in- G.S. 
143-2 15.! 08. 



143-215. 3(a)(1): 



143-215. 10'(a)(4): 



.0103 DEFINITIONS 

For the purposes of this Subchapter, the definitions in G.S. 
143-212 and 143-213 and the following definitions appK: 



(1) 



(2) 



(3) 
(4) 



"Air Pollutant" means an air pollution agent or 
combination of such agents, including an\ ph\sical. 
chemical, biological, radioactive substance or matter 
which is emitted into or otherwise enters the ambient 
air. Water \apor is not considered to be an air 
pollutant. 

"Allowable emissions" mean the maximum emissions 
allowed b) the applicable rules contained in 15A 
NCAC 2D or b\ permit conditions if the permit limits 
emissions to a lesser amount. 
"Alter or change" means to make a modification. 
"Applicable requirements" means: 

(a) an\ requirement of Section .0500 of this 
Subchapter: 

(b) an\ standard or other requirement pro\ ided for 
in the implementation plan approved or 
promulgated b\ EPA through rulemaking under 
Title I of the federal Clean Air Act that 
implements the rele\ant requirements of the 
federal Clean Air Act including an\ re\isions 
to 40 CFR Part 52; 

(c) an_\ term or condition of a construction permit 
for a facility. co\ered under ISA NCAC 2D 
.0530. .0531. or .0532: 

(d) an\ standard or other requirement under 
Section 111 or 112 of the federal Clean Air 
Act. but not including the contents of an\ risk 
management plan required under Section 1 12 
of the federal Clean Air Act; 

(e) an\ standard or other requirement under Title 

iv- 

(0 an\ standard or other requirement governing 

solid waste incineration under Section 129 of 

the federal Clean Air Act; 
(g) an\ standard or other requirement under 

Section 183(e). 183(f). or 328 of the federal 

Clean Air Act; 
(h) an> standard or requirement under Title VI of 

the federal Clean Air Act unless a permit for 

such requirement is not required under this 

Section; 
(i) an\ requirement under Section 504(b) or 

1 14(a)(3) of the federal Clean Air .Act: or 



(j) an\ national ambient air quality' standard or 
increment or visibility requirement under Part 
C of Title 1 of the federal Clean Air Act. but 
onl\ as it would appK' to temporary sources 
permitted pursuant to 504(e) of the federal 
Clean Air Act. 

(5) "Applicant" means the person who is applying for an 
air quality permit from the Division. 

(6) "Application package" means all elements or 
documents needed to make an application complete. 

(7) "CFR" means Code of Federal Regulations. 

(8) "Construction" means change in the method of 
operation or any physical change (including on-site 
fabrication, erection, installation, replacement, 
demolition, or modification of a source) that results in 
a change in emissions or affects the compliance status. 

(9) "Director" means the Director of the Division of 
Environmental Management. 

(10) "Division" means the Division of Environmental 
Management. 

(11) "EPA" means the United States Environmental 
Protection Agency or the Administrator of the 
En\ironmental Protection Agency. 

(12) "EPA approves" means full approval, interim 
approval, or partial approval by EPA. 

(13) "Equi\'alent unadulterated fliels" means used oils that 
have been refined such that the content of toxic 
additives or contaminants in the oil are no greater than 
those in unadulterated fossil fuels. 

(14) "Facility" means all of the pollutant emitting 
activities, except transportation facilities as defined 
under Rule .0802 of this Subchapter, that are located 
on one or more adjacent properties under common 
control. 

(15) "FederalK enforceable" or "federal-enforceable" 
means enforceable b\ EPA. 

(16) "Fuel combustion equipment" means any fuel burning 
source covered under ISA NCAC 2D .0503. .0504. 
.0524(aK 1 ). (29). (56). or (65). or .0536, 

(17) "Green wood" means wood \\ ith a moisture content of 
18 percent or more. 

(18) "Hazardous air pollutant" means an\ pollutant which 
has been listed pursuant to Section 112(b) of the 
federal Clean Air Act. Pollutants which are listed only 
in ISA NCAC 2D .1104 (Toxic Air Pollutant 
Guidelines), but not pursuant to Section 112(b). are 
not included in this definition. 

( 1 9) "Insignificant activities" means an\ activity exempted 
under Rule .0102 of this Section. 

(20) "Irrevocable contract" means a contract that cannot be 
revoked without substantial penalty. 

(21) "Lesser quantity cutoff means: 

(a) for a source subject to the requirements of 
Section 1 12(d) or (j) of the federal Clean Air 
Act. the level of emissions of hazardous air 
pollutants below which the following are not 
required: 
(i) maximum achievable control technology 



294 



.\ORTH C.4 



STf^^^U^^EGIS^R 



yu!itJ.J998 



i 



PROPOSED RULES 



(MACT) or generally available control 
technology (GACT), including work 
practice standards, requirement under 
Section 1 12(d) of the federal Clean Air 
Act; 
(ii) substitute MACT or GACT adopted 
under Section 112(1) of the federal 
Clean Air Act; or 
(iii) a MACT standard established under 
Section 112(j) of the federal Clean Air 
Act; 

(b) for modification of a source subject to, or may 
be subject to, the requirements of Section 
11 2(g) of the federal Clean Air Act, the level 
of emissions of hazardous air pollutants below 
which MACT is not required to be applied 
under Section 1 1 2(g) of the federal Clean Air 
Act; or 

(c) for all other sources, potential emissions of 
each hazardous air pollutant below 1 tons per 
year and the aggregate potential emissions of 
all hazardous air pollutants below 25 tons per 
year. 

(22) "Major facility" means a major source as defined 
under40CFR70.2. 

(23) "Modification" means any physical change or change 
in method of operation that results in a change in 
emissions or affects compliance status of the source or 
facility. 

(24) "Owner or operator" means any person who owns, 
leases, operates, controls, or supervises a facility, 
source, or air pollution control equipment. 

(25) "Peak shaving generator" means a generator that is 
located at a facility and is used only to serve that 
facility's on-site electrical load during peak demand 
periods for the purpose of reducing the cost of 
electricity; it does not generate electricity for resale. 
A peak shaving generator may also be used for 
emergency backup. 

(26) "Permit" means the legally binding written document, 
including any revisions thereto, issued pursuant to 
G.S. 143-215.108 to the owner or operator of a 
facility or source that emits one or more air pollutants 
and that allows that facility or source to operate in 
compliance with G.S. 143-215.108. This document 
specifies the requirements applicable to the facility or 
source and to the permittee. 

(27) "Permittee" means the person who has received an air 
quality permit from the Division. 

(28) "Potential emissions" means the rate of emissions of 
any air pollutant which would occur at the facility's 
maximum capacity to emit any air pollutant under its 
physical and operational design. Any physical or 
operational limitation on the capacity of a facility to 
emit an air pollutant shall be treated as a part of its 
design if the limitation is federally enforceable. Such 
physical or operational limitations include air 
pollution control equipment and restrictions on hours 



of operation or on the type or amount of material 
combusted, stored, or processed. Potential emissions 
include fugitive emissions as specified in the 
definition of major source in 40 CFR 70.2. Potential 
emissions do not include a facility's secondary 
emissions such as those from motor vehicles 
associated with the facility and do not include 
emissions fi^om insignificant activities listed in Rule 
.0102(b)(1) of this Section. If a rule in 40 CFR Part 
63 uses a different methodology to calculate potential 
emissions, that methodology shall be used for sources 
and pollutants covered under that rule. 

(29) "Portable generator" means a generator permanently 
mounted on a trailer or a frame with wheels. 

(30) "Regulated air pollutant" means: 

(a) nitrogen oxides or any volatile organic 
compound as defined under 40 CFR 5 1 . 1 00; 

(b) any pollutant for which there is an ambient air 
quality standard under 40 CFR Part 50 ; 

(c) any pollutant regulated under 15A NCAC 2D 
.0524, . 1 1 1 0, or . 1 1 1 1 or 40 CFR Part 60, 61 , 
or 63; 

(d) any pollutant subject to a standard promulgated 
under Section 112 of the federal Clean Air Act 
or other requirements established under Section 
112 of the federal Clean Air Act, including 
Section 1 12(g) (but only for the facility subject 
to Section 1 12(g)(2) of the federal Clean Air 
Act), (j), or (r) of the federal Clean Air Act; or 

(e) any Class 1 or II substance listed under Section 
602 of the federal Clean Air Act. 

(31) "Sawmill" means a place or operation where logs are 
sawed into lumber consisting of one or more of these 
activities: debarking, sawing, and sawdust handling. 
Activities that are not considered part of a sawmill 
include chipping, sanding, planing, routing, lathing, 
and drilling. 

f34^ (32) "Source" means any stationary article, machine, 
process equipment, or other contrivance, or 
combination thereof, from which air pollutants 
emanate or are emitted, either directly or indirectly. 

(35) (33) "Toxic air pollutant" means any of the 
carcinogens, chronic toxicants, acute systemic 
toxicants, or acute irritants that are listed in 15A 
NCAC 2D. 11 04. 

(^3) (34) "Transportation facility" means a complex 
source as defined at G.S. 143-2 1 3(22) that is subject 
to the requirements of 15A NCAC 2D .0800. 

f34) (35) "Unadulterated fossil fuel" means fuel oils, coal, 
natural gas, or liquefied petroleum gas to which no 
toxic additives have been added that could result in 
the emissions of a toxic air pollutant listed under 1 5 A 
NCAC 2D. 11 04. 

Aulhorih' G.S. N3-2I5. 3(a)(1): 143-212: 143-213. 

.0107 CONFIDENTIAL INFORMATION 

(a) All information required to be submitted to the 



m 



m^mmma^^m^A 



m 



PROPOSED RILES 



Commission or the Director under this Subchapter or Subchapter 
2D of this Title shall be disclosed to the public unless the person 
submitting the information can demonstrate that the information 
is entitled to contldential treatment under G.S. 143-2 1 5. 3C. 

(b) A request that information he treated as confidential shall 
be made b> the person submitting the information at the time that 
the information is submitted. The request shall state in writing 
reasons \sh\ the information should be held confidential. An_\ 
request not meeting these requirements shall be in\alid. 

(c) The Director shall mak e a pr e liminar> d e t e rmination of 
decide which information is entitled to confidential treatment 
and shall notif\ the person requesting confidential treatment of 
his decision within W 180 da>s of receipt of a request to treat 
information as confidential. 

(d) Information for which a request has been made under 
Paragraph (b) of this Rule to treat as confidential shall be treated 
as confidential until the Director decides that it is not 
contTdential. 

Authority G.S. 143-21 5. 3la)(l i: 143-21 5. 3C. 

SECTION .0300 - CONSTRUCTION AND OPERATION 
PERMITS 

.0304 APPLICATIONS 

(a) Obtaining and filing application. Permit, permit 
modification, or permit renewal applications ma\ be obtained 
and shall be filed in writing in accordanc e with according to 
Rule .0104 of this Subchapter. 

(b) Information to accompans application. Along with filing 
a complete application form, the applicant shall also file the 
following: 

(1) for a new facilit} or an expansion of existing facilin.. 
a consistencN determination in accordanc e with 
according to G.S. 143-215. 108(f) that: 

(A) bears the date of receipt entered b\ the clerk of 
the local go\ emment. or 

(B) consists of a letter from the local go\ emment 
indicating that all zoning or subdi%ision 
ordinances are met b\ the facilit> ; 

(2) for a new facilit> or moditlcation of an existing 
facilit\. a written description of current and projected 
plans to reduce the emissions of air contaminants b\ 
source reduction and rec\cling in accordance with 
according to G.S. 143-215. 108(g): the description 
shall include: 

(A) for an existing facilit\. a summan. of acti\ities 
related to source reduction and rec\cling and a 
quantification of air emissions reduced and 
material recNcled during the previous % ear and 
a summary of plans for further source 
reduction and rec\ cling: or 

(B) for a new facilit>. a summan. of acti\ities 
related to and plans for source reduction and 
recNcling: and 

(3) if required b> the Director, information showing that: 
(A) The applicant is financialK qualified to carr\ 

out the permitted acti\ ities. or 



(Bj The applicant has substantialK complied with 
the air quality and emissions standards 
applicable to an\ acti\it} in which the 
applicant has pre\iousK been engaged, and has 
been in substantial compliance with federal and 
state en\ ironmental laws and rules. 

(c) When to fije application. For sources subject to the 
requirements of 15A NCAC 2D .0530 (prevention of significant 
deterioration) or .0531 (new source re\iew for sources in 
nonattainment areas), applicants shall file air permit applications 
at least 180 da%'s before the projected construction date. For all 
other sources, applicants shall file air permit applications at least 
90 da\s before the projected date of construction of a new 
source or modification of an existing source. 

(d) Permit renewal and ownership changes with no 
modifications. If no modification has been made to the 
originalK permitted source, application for permit renewal or 
ownership change ma> be made b\ letter to the Director at the 
address specified in Rule .0104 of this Subchapter The renewal 
or ownership change letter must state that there have been no 
changes in the permitted facilitv since the permit was last issued. 
Howe\er. the Director ma\ require the applicant for ownership 
change to submit additional information show ing that: 

( 1 ) The applicant is financialK qualified to carr> out the 
permitted activities, or 

(2) The applicant has substantialK complied with the air 
qualitv and emissions standards applicable to an\ 
activity' in which the applicant has previousl> been 
engaged, and has been in substantial compliance w ith 
federal and state en\ ironmental law s and rules. 

To make a name or ownership change, the applicant shall send 
the Director the number of copies of letters specified in Rule 
.0305(3) or (4) of this Section signed b\ a person specified in 
Paragraph (j) of this Rule. 

(e) .Applications for date and reporting changes. Application 
for changes in construction or test dates or reporting procedures 
ma\ be made b\ letter to the Director at the address specified in 
Rule .0104 of this Section. To make changes in construction or 
test dates or reporting procedures, the applicant shall send the 
Director the number of copies of letters specified in Rule 
.0305(a)(5) of this Section signed b\ a person specified in 
Paragraph (J) of this Rule. 

(f) When to file applications for permit renewal. Applicants 
shall file applications for renewals such that the\ are received b> 
the Division at least 90 da>s before expiration of the permit. 

(g) Ownership or name change. The permittee shall tile 
requests for permit name or ownership changes as soon as the 
permittee is aware of the imminent name or ownership change. 

(h) Number of copies of additional information. The 
applicant shall submit the same number of copies of additional 
information as required for the application package. 

(i) Requesting additional information. Whenever the 
information provided on the permit application forms does not 
adequate!} describe the source and its air cleaning dev ice. the 
Director mav request that the applicant provide anv other 
information that the Director considers necessar}. to ev aluate the 
source and its air cleaning dev ice. Before acting on anv permit 
application, the Director mav request anv information from an 



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applicant and conduct any inquiry or investigation that he 
considers necessary to determine compliance with applicable 
standards. 

(j) Signature on application. Permit applications submitted 
pursuant to this Rule shall be signed as follows: 

( 1 ) for corporations, by a principal executive officer of at 
least the level of vice-president, or his duly authorized 
representative, if such representative is responsible for 
the overall operation of the facility from which the 
emissions described in the permit application form 
originates; 

(2) for partnership or limited partnership, by a general 
partner; 

(3) for a sole proprietorship, by the proprietor; 

(4) for municipal, state, federal, or other public entity, by 
a principal executive officer, ranking elected official, 
or other duly authorized employee. 

(k) Application fee. With the exceptions specified in Rule 
.0203(1) of this Subchapter, a non-reftindable permit application 
processing fee shall accompany each application. The permit 
application processing fees are defined in Section .0200 of this 
Subchapter. Each A permit application is incomplete until the 
permit application processing fee is received. 

tlj Correcting submittals of incorrect information. An 
applicant has a continuing obligation to submit relevant facts 
pertaining to his permit application and to correct incorrect 
information on his permit application. 

fl) (m) Retaining copy of permit application package. The 
applicant shall retain for the duration of the permit term one 
complete copy of the application package and any information 
submitted in support of the application package. 

Authority G.S. 143-21 5. 3(a)(l ): 145-215.108. 

.0306 PERMITS REQUIRING PUBLIC 
PARTICIPATION 

(a) The Director shall provide for public notice for comments 
with an opportunity to request a public hearing on draft permits 
for the following: 

(1) any source that may be designated by the Director 
based on significant public interest relevant to air 
quality; 

(2) a source to which 15A NCAC 2D .0530 or .0531 
applies; 

(3) a source whose emission limitation is based on a good 
engineering practice stack height that exceeds the 
height defined in 15A NCAC 2D .0533(a)(4)(A). (B). 
or(C); 

(4) a source required to have controls more stringent than 
the applicable emission standards in 15A NCAC 2D 
.0500 in accordanc e with according to 1 5 A NCAC 2D 
.0501 when necessary to comply with an ambient air 
quality standard under 15A NCAC 2D .0400; 



n e c e soary to avoid the applicability of rul e s in 15A 

NCAC 2D .0900 or 15A NCAC 2Q .0500; 
(^ (5_) alternative controls different than from the 

applicable emission standards in 15A NCAC 2D 

.0900 in accordanc e with according to 1 5A NCAC 2D 

.0952; 
(7^ an alt e rnat e complianc e s ch e dul e promulgat e d in 

accordance with 15A NCAC 2D .0910; 
(^ (6} a limitation on the quantity of solvent-borne ink 

that may be used by a printing unit or printing system 

in accordanc e with according to 15A NCAC 2D 

.0936; 
(9) £7J anallowanceof a particulate emission rate of 0.08 

grains per dry standard cubic foot for an incinerator 

constructed before July 1, 1987, in accordanc e with 

according to 15A NCAC 2D .1205(b)(2); 
(4-0) (8} an alternative mix of controls under 1 5 A NCAC 

2D .0501(f): 
(44-) (9j a source that is subject to the requirements of 1 5 A 

NCAC 2D . 1 1 09 because of 1 5 A NCAC 2D . 1 1 09(e); 

or 
f+2) (10) the owner or operator who requests that the draft 

permit go to public notice with an opportunity to 

request a public hearing. 

(b) Failur e of the own e r or op e rator of a sourc e p e rmitt e d 
pursuant to this Rule to adh e r e to th e t e rms and limitations of th e 
permit shall be grounds for: 

fH — enforc e m e nt action; 

Q) — p e rmit t e rmination, r e vocation and r e issuanc e , or 

modification; or 
{¥) — d e nial of permit renewal applications. 

(c) All e mi ss ion s limitations, controls, and other r e quir e m e nts 
impos e d by a p e rmit i ss u e d pursuant to thi s Rul e shall be at least 
as s tring e nt as any oth e r applicabl e r e quir e m e nt as d e fined und e r 
Rul e .0103 ( e ff e ctiv e dat e of July 1. 199 4 ) of this Subchapt e r. 
Th e p e rmit shall not waiv e or mak e l ess string e nt any limitation 
or r e quir e m e nt contain e d in any applicabl e r e quir e m e nt. 

fd) Emissions — limitations. — controls — and — requirements 

contain e d in p e rmits issu e d pursuant to th e Rul e shall b e 
perman e nt, quantifiabl e , and oth e rwis e e nforc e abl e a s a practical 
matt e r und e r G.S. — H3 215. IHA. — 1 4 3215. 11 4 B. and 
1'13 215.1W J C. 



(e) (bj If EPA requires the State to submit a permit as part of 
the North Carolina State Implementation Plan for Air Quality 
(SIP) and if the Commission approves a permit containing any 
of the conditions described in Paragraph (a) of this Rule as a part 
of the SIP. the Director shall submit the permit to the EPA on 
behalf of the Commission for inclusion as part of the federally 
approved SIP. 



Authority G.S. 143-215. 3(a)ll).(3>: 
143-2 15. 11 4A: 143-215.114B: 143-215.114C. 



143-215.108: 



<^53 any physical or operational limitation on th e capacity .0309 



of th e source to e mit a pollutant, including air 
cl e aning d e vic e and r e strictions on hours of op e ration 
or on th e typ e or amount of mat e rial combust e d, 
s tor e d, or proc e ss e d, when such a limitation is 



TERMINATION, MODIFICATION AND 
REVOCATION OF PERMITS 

(a) The Director may terminate, modify, or revoke and reissue 
any permit issued under this Section if: 

(1) The information contained in the application or 



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PROPOSED RULES 



presented in support thereof is determined to be 
incorrect: 

(2) The conditions under which the permit or permit 
renewal was granted ha\e changed; 

(3) Violations of conditions contained in the permit ha\e 
occurred: 

(4) The permit holder fails to pa\ the fee required under 
Section .0200 of this Subchapter within 30 da\s after 
being billed: 

(5) The permittee refuses to allow the Director or his 
authorized representative upon presentation of 
credentials: 

(A) to enter, at reasonable times and using 
reasonable safet\ practices, the permittee's 
premises in which a source of emissions is 
located or in which an\ records are required to 
be kept under terms and conditions of the 
permit: 

(B) to ha\e access, at reasonable times, to an\ cop> 
or records required to be kept under terms and 
conditions of the permit: 

(C) to inspect, at reasonable times and using 
reasonable safer\ practices. an\ source of 
emissions, control equipment, and an\ 
monitoring equipment or method required in 
the permit: or 

(D) to sample, at reasonable times and using 
reasonable safet> practices. an\ emission 
source at the facilitN : 

(6) The Director finds that termination, modification, or 
revocation and reissuance of a permit is necessan. to 
earn, out the purpose of G.S. 143. Article 21B. 

(b) The permittee shall furnish the Division, in a timelv 
manner, any reasonable information that the Director mav 
request in v\riting to determine whether cause exists for 
terminating, modify ing. or revoking and reissuing the permit or 
to determine compliance w ith the permit. 

fb4 IcJ The operation of a facilitv or source after its permit 
has been r e vok e d terminated is a violation of this Section and 
G.S. 143-215.108. 

te4 [dj The permittee mav request modifications to his permit. 

(e) The filing of a request by a permittee for a permit 
termination, modification, revocation and reissuance, 
notification of planned changes, or anticipated noncompliance 
does not stav anv permit term or condition. 

{d) (jQ When a permit is modified, the proceedings shall 
affect onlv those parts of the permit that are being modified. 



(b) Emissions limitations, controls and requirements 
contained in permits issued pursuant to the Section shall be 
permanent, quantifiable, and otherw ise enforceable as a practical 
matter under G.S. 143-215.1 14A. 143-215.1148. and 
143-215, 114C. 



Authorin- G.S. 145-21 5.3ia)(I i.( lai.ilbi: 
! 43-2 15.114.4: 143-215. 11 4B: 143-2 15. INC. 



143-215.108: 



.0314 GENERAL PERMIT REQUIREMENTS 

(a) All emissions limitations, controls, and other requirements 
imposed bv a permit issued pursuant to this Section shall be at 
least as stringent as any other applicable requirement as defined 
under Rule .0103 of this Subchapter. The permit shall not waive 
or make less stringent anv limitation or requirement contained in 
any applicable requirement. 



(c) The owner or operator of a source permitted under this 
Section shall comply with the permit. Failure of the owner or 
operator of a permitted source to adhere to the terms and 
conditions of the permit shall be grounds for: 

( 1 ) enforcement action: 

(2) permit termination, revocation and reissuance, or 
modification: or 

(3) denial of permit renewal applications. 

(d) A permit does not convev anv property rights of any sort. 
or any exclusive privileges. 

.Authorin- G.S. 143-215. 3(a)(1): 143-215.108. 

.0315 SYNTHETIC MINOR FACILITIES 

(a) A synthetic minor facility is a facilirs whose permit 
contains terms and conditions to avoid the procedures of 15A 
NCAC 2Q .0500. Title V Procedures. 

(b) The owner or operator of a facility to which 1 5 A NCAC 
20 .0500. Title V Procedures, applies mav choose to have terms 
and conditions placed in his permit to restrict operation to limit 
the potential to emit of the facility in order to remove the 
applicability of 15A NCAC 2Q .0500 to the facility. An 
application for the addition of such terms and conditions shall be 
processed under this Section. 

(c) A modification to a permit to remove terms and conditions 
in tlie permit that removed the applicability of 15A NCAC 20 
.0500 shall be processed under either this Section or 1 5 A NCAC 
20 .0500. The applicant shall choose which procedures to 
follow. However, if tfie terms and conditions are removed 
following the procedures of tins Section, the permittee shall 
submit a permit application under the procedures of 1 5.A NCAC 
20 .0500 w ithin one v ear after the limiting terms and conditions 
are removed. 

(d) After a facility is issued a permit that contains terms and 
conditions to remove the applicability of 1 5 A NCAC 20 .0500. 
the facility shall comply with the permitting requirements of this 
Section. 

(e) The Director mav require monitoring, recordkeeping, and 
reporting necessarv to assure compliance with the terms and 
conditions placed in tlie permit to remove the applicability of 
15A NCAC 20 .0500. 



.Authorin- G.S 143-215. 3(aiili: 143-215.65: 143-215.66: 
143-215. W(a)(10): 143-215.108. 

SECTION .0400 - ACID RAIN PROCEDURES 

.0401 PURPOSE AND APPLICABILITY 

(a) The purpose of this Rule is to implement Phase 11 of the 
federal acid rain program pursuant to the requirements of Title 
IV of the Clean Air Act as provided in 40 CFR Part 72. Parts 72 
and 76. 

(b) Th e proc e dur es and requir e m e nts und e r this Section do 



298 



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PROPOSED RULES 



not apply until th e EPA approv e s thi s S e ction and S e ction .0500 
of this Subchapt e r. 
{e) £b] Applicability. 

(1 ) Each of the following units shall be an affected unit, 
and any facility that includes such a unit shall be an 
affected facility, subject to the requirements of the 
Acid Rain Program: 

(A) A unit listed in 40 CFR Part 73, Subpart B, 
Table 1. 

(B) A unit that is identified as qualifying for an 
allowance allocation under 40 CFR 73.10 
Table 2 or 3 and any other existing utility unit, 
except a unit under Subparagraph (2) of this 
Paragraph. 

(C) A utility unit, except a unit under Subparagraph 
(2) of this Paragraph, that: 

(i) is a new unit; 

(ii) did not serve a generator with a 
nameplate capacity greater than 25 
MWe on November 1 5, 1990, but serves 
such a generator after November 15, 
1990; 

(iii) was a simple combustion turbine on 
November 15, 1990 but adds or uses 
auxiliary firing after November 15, 
1990; 

(iv) was an exempt cogeneration facility 
under Part (2)(D) of this Paragraph but 
during any three calendar year period 
after November 15. 1990, sold to a 
utility power distribution system, an 
annual average of more than one third of 
its potential electrical out-put capacity 
and more than 219,000 MWe-hrs 
electric output, on a gross basis; 
(v) was an exempt qualifying facility under 
Part (2)(E) of this Paragraph but at any 
time after the later of November 15, 
1990. or the date the facility commences 
commercial operation, fails to meet the 
definition of qualifying facility; 

(vi) was an exempt independent power 
production facility under Part (2)(F) of 
this Paragraph but at any time after the 
later of November 1 5. 1990. or the date 
the facility commences commercial 
operation, fails to meet the definition of 
independent power production facility; 
or 

(vii) was an exempt solid waste incinerator 
under Part (2)(G) of this Paragraph but 
during any three calendar year period 
after November 15, 1990, consumes 20 
percent or more (on a Btu basis) fossil 
fuel. 

(2) The following types of units are not affected units 
subject to the requirements of the Acid Rain Program: 
(A) A simple combustion turbine that commenced 



operation before November 15, 1990. 

(B) Any unit that commenced commercial 
operation before November 15, 1990, and that 
did not, as of November 15,1 990, and does not 
currently, serve a generator with a nameplate 
capacity of greater than 25 MWe. 

(C) Any unit that, during 1985, did not serve a 
generator that produced electricity for sale and 
that did not, as of November 15, 1990, and 
does not currently, serve a generator that 
produces electricity for sale. 

(D) A co-generation facility which: 

(i) for a unit that commenced construction 
on or prior to November 15, 1990, was 
constructed for the purpose of supplying 
equal to or less than one-third its 
potential electrical output capacity or 
equal to or less than 219,000 MWe-firs 
actual electrical output on an annual 
basis to any utility power distribution 
system for sale (on a gross basis). If the 
purpose of construction is not known, it 
will be presumed to be consistent with 
actual operation from 1985 through 
1987. However, if in any three calendar 
year period after November 15, 1990, 
such unit sells to a utility power 
distribution system an annual average of 
more than one-third of its potential 
electrical output capacity and more than 
219.000 MWe-hrs actual electrical 
output (on a gross basis), that unit shall 
be an affected unit, subject to the 
requirements of the Acid Rain Program, 
or 

(ii) for units that commenced construction 
after November 15, 1990, supplies equal 
to or less than one-third its potential 
electrical output capacity or equal to or 
less than 219,000 MWe-hrs actual 
electrical output on an annual basis to 
any utility power distribution system for 
sale (on a gross basis). However, if in 
any three calendar year period after 
November 15, 1990, such unit sells to a 
utility power distribution system an 
annual average of more than one-third 
of its potential electrical output capacity 
and more than 2 1 9,000 MWe-hrs actual 
electrical output (on a gross basis), that 
unit shall be an affected unit, subject to 
the requirements of the Acid Rain 
Program. 

(E) A qualifying facility that: 

(i) has, as of November 15. 1990, one or 
more qualifying power purchase 
commitments to sell at least 15 percent 
of its total planned net output capacity; 



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PROPOSED RULES 



and 
(ii) consists of one or more units designed 
b\ the owner or operator with total 
installed net output capacit> not 
exceeding 130 percent of the total 
planned net output capacir\. If the 
emissions rates of the units are not the 
same, the Administrator shall designate 
which units are exempt. 

(F) An independent power production facilit> that: 

(i) has. as of November 15. 1990. one or 
more qualifying power purchase 
commitments to sell at least 15 percent 
of its total planned net output capacit> ; 
and 
(ii) consists of one or more units designed 
by the owner or operator with total 
installed net output capacit> not 
exceeding 130 percent of the total 
planned net output capacit\. If the 
emissions rates of the units are not the 
same, the Administrator shall designate 
which units are exempt. 

(G) A solid waste incinerator, if more than 80 
percent (on a Btu basis) of the annual fuel 
consumed at such incinerator is other than 
fossil fuels. For a solid waste incinerator 
which began operation before Januar> 1. 1985. 
the a\ erage annual fuel consumption of non- 
fossil fuels for calendar years 1985 through 
1987 must be greater than 80 percent for such 
an incinerator to be exempt. For a solid w aste 
incinerator which began operation after 
Januan. 1. 1985. the a\ erage annual fuel 
consumption of non-fossil fuels for the first 
three > ears of operation must be greater than 80 
percent for such an incinerator to be exempt. 
If. during an> three calendar \ear period after 
No\ ember 15. 1990. such incinerator consumes 
20 percent or more (on a Btu basis) fossil fuel, 
such incinerator will be an affected source 
under the Acid Rain Program. 

(H) A non-utilir% unit. 
(3) A certily ing official of an\ unit ma\' petition the 
Administrator for a determination of applicabilit> 
under 40 CFR 72.6(c). The .Administrator's 
determination of applicability shall be binding upon 
the Di\ision. unless the petition is found to ha\e 
contained significant errors or omissions. 

Authorin- G.S. 143-215. 3<ail 1 ): 143-215. WlaKS): 143- 
215.108. 

.0402 .ACID RAIN PERMITTING PROCEDURES 

(a) For the purpose of this Rule the definitions contained in 
40 CFR 72.2 and 76.2 and the measurements. abbre\ iations. and 
acronxms contained in 40 CFR 72.3 shall appK. 

(b) Affected units as defined in 40 CFR 72.6 and 72.6. 76.1. 



or Paragraph (e^ (bJ(n of Rule .0401 of this Section shall 
compK with the permit, monitoring, sulfur dioxide, nitrogen 
oxides, excess emissions, recordkeeping and reporting. liabilit\. 
and an\ other provisions as required in 40 CFR Part 72. Part 72 
and 76, The term "permitting authorit)" shall mean Division of 
Environmental Management, and the term "Administrator" shall 
mean the Administrator of the United States Environmental 
Protection Agency. 

(c) If the provisions or requirements of 40 CFR Part 72 or 76 
conflict with or are not included in Section .0500 of this 
Subchapter, the then Part 72 or 76 pro\ isions and requirements 
shall appK and take precedence. 



A uthority G. S. 
143-215.108. 



143-2 15.3(a)(1): 143-215. W^(a)(8): 



SECTION .0500 - TITLE V PROCEDURES 

.0511 SYNTHETIC MINOR FACILITIES 

(a) Th e own e r or op e rator of a facilit> to which this Section 
appli e s ma\ choo se to ha\ e t e rms and condition s plac e d in his 
p e rmit to r e strict op e ration to limit the potential to e mit of th e 
facilitv in ord e r to remov e th e applicability of this S e ction to th e 
facilitv. 

(b) An\ p e rmit containing t e rms and condition s to remove the 
applicability of this Section aft e r on e > e ar aft e r EPA approv es 
this S e ction s hall b e proc es s e d according to Rul e s .0521 and 
.0522 of this S e ction wh e n thes e t e rms and conditions ar e first 
plac e d in the p e rmit. 

(c) Aft e r a facility is i s su e d a p e rmit that contains t e rms and 
conditions to r e mov e th e applicabilitv of this S e ction, th e facilir_> 
shall compK with th e p e rmitting requirem e nts of S e ction .0300 
of this Subchapt e r. 

fd4 — If th e hold e r of a p e rmit for a ssnth e tic minor facilit> 
appli e s to chang e a t e rm or condition that r e mov e d his facilit} 
from th e applicabilit> of thi s S e ction, th e application shall be 
proc e ss e d und e r this S e ction. 

( e ) Th e Dir e ctor max r e quir e monitoring, r e cordk ee ping, and 
r e porting n e c e ssar> to assure complianc e with th e t e rms and 
condition s plac e d in th e p e rmit to r e mo\ e th e applicabilitv of thi s 
S e ction. 



Authorin- G.S. 143-215. 3(a)(1): 143-215.65: 
143-215. 10'(a)(10): 143-215.108. 



143-215.66: 



SECTION .0800 - EXCLUSIONARY RULES 

.0801 PURPOSE AND SCOPE 

(a) The purpose of this Section is to define categories of 
facilities that are exempted from needing a permit under Section 
.0500. Title V Procedures, of this Subchapter or the applicabilirs 
of i5A NCAC 2D .1111 or 40 CFR Part 63 bv defining their 
potential emissions to be less than: 

( 1 ) 1 00 tons per v ear of each regulated air pollutant: 

(2) 10 tons per year of each hazardous air pollutant: and 

(3) 25 tons per vear of all hazardous air pollutants 
combined: 

as determined bv criteria set out in each individual source 



^i^K^tfiffiiii 



3. 1998 



13:3 



PROPOSED RULES 



category rule. £A particular maximum achievable control 
technology (MACT) standard promulgated under 40 CFR Part 
63 may have a lower applicability threshold than those contained 
in this Paragraph. The threshold contained in that MACT 
standard shall be used to determine the applicability of that 
MACT standard.] 

£bj Coverage under the rules of this Section is voluntary. The 
owner or operator of a facility or source qualified to be covered 
under a rule in this Section that does not want to be covered 
under that rule shall notify the Director in writing that he does 
not want his facility covered under this Section, and the Section 
shall no longer apply to that facility or source. 

(¥) (c} A source cannot rely on emission limits or caps 
contained in this Section to justify violation of any rate-based 
emission limits or other applicable requirements. 

(e) (d) Although a facility is exempted, by complying with 
this Section, from the permitting procedures contained in Section 
.0500, Title V Procedures, of this Subchapter, or the 
applicability of 15A NCAC 2D . 1 1 1 1 or 40 CFR Part 63, it may 
still need a permit under Section .0300, Construction and 
Operation Permit, of this Subchapter unless it is exempted from 
needing a permit by Rule .0102 of this Subchapter. 

(e) Except for gasoline service stations and dispensing 
facilities and dry cleaning facilities, any facility or source not 
required to have a permit under this Subchapter shall not be 
required to maintain records and report emissions as required 
under this Section. 

Authority^ G.S. 143-21 5.3(a): 143-21 5. 107(a)(10): 143-215.108. 

.0803 COATING, SOLVENT CLEANING, 
GRAPHIC ARTS OPERATIONS 

(a) For the purposes of this Rule, the following definitions 
apply: 

( 1 ) "Coating operation" means a process in which paints, 
enamels, lacquers, varnishes, inks. dyes, glues, and 
other similar materials are applied to wood, paper, 
metal, plastic, textiles, or other types of substrates. 

(2) "Solvent cleaning operation" means the use of 
solvents containing volatile organic compounds to 
clean soils from metal, plastic, or other types of 
surfaces. 

(3) "Graphic arts operation" means the application of inks 
to form words, designs, or pictures to a substrate, 
usually by a series of application rolls each with only 
partial coverage and usually using letterpress, offset 
lithography, rotogravure, or flexographic process. 

(b) Potential emissions for a coating operation, solvent 
cleaning operation, or graphic arts operation shall be determined 
using actual emissions without accounting for any air pollution 
control devices to reduce emissions of volatile organic 
compounds or hazardous air pollutants including 
perchloroethylene from the coating operation, solvent cleaning 
operation or graphic arts operation. All volatile organic 
compounds and hazardous air pollutants that are also volatile 
organic compounds and perchloroethylene are assumed to 
evaporate and be emitted into the atmosphere at the source. 

(c) Paragraphs (d) through (k) of this Rule do not apply to any 



facility whose potential emissions are greater than or equal to: 

(1) 100 tons per year of each regulated air pollutant; 

(2) 10 tons p er year of each hazardous air pollutant: or 

(3) 25 tons per year of all hazardous air pollutants 
combined; 

as determined by criteria set out in each individual source 
category rule. [A particular maximum achievable control 
technology (MACT) standard promulgated under 40 CFR Part 
63 may have a lower applicability threshold than those contained 
in this Paragraph. The threshold contained in that MACT 
standard shall be used to determine the applicability of that 
MACT standard.] 

(e) (dj The With the exception of Paragraph (c) of this Rule. 
the owner or operator of a coating, solvent cleaning, or graphics 
arts operation locat e d at a facility not r e quir e d to have a permit 
und e r S e ction .0500. Titl e V Proc e dur e s, of this Subchapt e r in 
accordanc e with Rul e .0502. Applicability, of this Subchapt e r 
shall be exempted from the requirements of Section .0500 of this 
Subchapter, provided the owner or operator of the facility 
complies with Paragraphs (e) through (i) of this Rule, as 
appropriate. 

(4) (e] Only Paragraph (b) of this Rule applies to coating 
operations, solvent clean cleaning operations, or graphic arts 
operations that are exempted from needing a permit under Rule 
.0102 of this Subchapter. 

(e) LQ The owner or operator of a facility whose potential 
emissions: 

( 1 ) of volatile organic compounds are less than 1 00 tons 
per year but more than or equal to 75 tons per year; 

(2) of each hazardous air pollutant is less than 10 tons per 
year but more than or equal to 7.5 tons per year; or 

(3) of all hazardous air pollutants combined are less than 
25 tons per year but more than or equal to 1 8 tons per 
year; 

shall maintain records and submit reports as described in 
Paragraphs (f) and (i) of this Rule. 

(f) (g) For facilities covered under Paragraph (e) of this Rule, 
the owner or operator shall: 

(1) maintain monthly consumption records of each 
material used containing volatile organic compounds 
as follows: 

(A) quantity of volatile organic compound in 
pounds per gallon of each material used, 

(B) pounds of volatile organic compounds of each 
material used per month and total pounds of 
volatile organic compounds of each material 
used during the 1 2-month period ending on that 
month, 

(C) quantity of each hazardous air pollutant in 
pounds per gallon of each material used. 

(D) pounds of each hazardous air pollutant of each 
material used per month and total pounds of 
each hazardous air pollutant of each material 
used during the 12-month period ending on that 
month. 

(E) quantity of all hazardous air pollutants in 
pounds per gallon of each material used, and 

(F) pounds of all hazardous air pollutants of each 



7V( 



mMmmmm^^u^m 



PROPOSED RULES 



material used per month and total pounds of all hazardous air 
pollutants of each material used during the 12-month period 
ending on that month: and 

(2) submit to the Director each quarter, or more 
frequently if required by a permit condition, a report 
summarizing emissions of volatile organic compounds 
and hazardous air pollutants containing the following: 

(A) pounds volatile organic compounds used: 

(i) for each month during the quarter, and 
(ii) for each 12-month period ending on 
each month during the quarter using the 
12-month rolling average method: 

(B) greatest quantity in pounds of an individual 
hazardous air pollutant used: 

(i) for each month during the quarter, and 
(ii) for each 12-month period ending on 
each month during the quarter using the 
12-month rolling average method: and 

(C) pounds of all hazardous air pollutants used: 

(i) for each month during the quarter, and 
(ii) for each 12-month period ending on 
each month during the quarter using the 
12-month rolling average method. 
(#) IbJ The owner or operator of a facility whose potential 
emissions: 

(1) of volatile organic compounds are less than 75 tons 
per \ ear. 

(2) of each hazardous air pollutants is less than 7.5 tons 
per > ear. and 

(3) of all hazardous air pollutants combined are less than 
1 8 tons per > ear. 

shall maintain records and submit reports as described in 
Paragraphs (h) and (i) of this Rule. 

^ (ij For facilities covered under Paragraph (g) of this Rule, 
the owner or operator shall submit to the Director by February 
15th of each \ear. or more frequentK if required b\ a permit 
condition, a report summarizing emissions of volatile organic 
compounds and hazardous air pollutants containing the 
following: 

(1 ) pounds volatile organic compounds used during the 
previous calendar > ear. 

(2) pounds of the highest individual hazardous air 
pollutant used during the previous \ear. and 

(3) pounds of all hazardous air pollutants used during the 
previous \ear. 

(4^ (jj In addition to the specific reporting requirements for 
sources covered under Paragraphs (e) and (g) of this Rule, the 
owner or operator of the source shall: 

( 1 ) maintain purchase orders and invoices of materials 
containing volatile organic compounds, which shall be 
made available to the Director upon request to 
confirm the general accuracv' of the reports filed under 
Paragraphs (0 or (h) of this Rule regarding materials 
usage: 

(2) retain purchase orders and invoices for a period of at 
least three \ ears: 

(3 ) report to the Director anv exceedance of a requirement 
of this Rule within one vseek of occurrence: and 



(4) certify' all submittals as to the truth, completeness, and 

accuracy of all information recorded and reported 

over the signature of the appropriate official as 

identified in Rule .0304(j) of this Subchapter. 

(j) £k) Copies of all records required to be maintained under 

Paragraphs (f). (h) or (i) of this Rule shall be maintained at the 

facility and shall be available for inspection by personnel of the 

Division on demand. 

fk) iU The Director shall maintain a list of facilities covered 
under this Rule. 

Authority G.S. 143-2 15.3(a): 143-215. 10~(a/f 10): 143-215.108. 

.0808 PEAK SHAVING GENERATORS 

(a) This Rule applies to facilities whose onlv sources 
requiring a permit is one or more peak shaving generators and 
their associated fuel storage tanks. 

(b) For the purpose of this Rule, potential emissions shall be 
determined using actual total energy production. 

(c) Anv facility whose total energy production from one or 
more peak shaving generators is less than or equal to 6,500,000 
kw-hrs per vear shall be exempted from the requirements of 
Section .0500 of this Subchapter. 

(d) The owner or operator of any peak shaving generator 
exempted by this Rule from Section .0500 of this Subchapter 
shall submit. b\ February 15th of each year a report containing 
the following information: 






m 



the name and location of the facility; 

the number and size of ah peak shaving generators 

located at the facility : 

the total number of hours of operation of a]] peak 

shaving generators located at the facility: 

the actual total amount of energ\ production per year 

from all peak shaving generators located at the 

facility; and 



the signature of the appropriate official as identified 
in Rule .0304(i) of this Subchapter certifying as to the 
truth and accuracy of the report. 

(e) The owner or operator of any facility exempted by this 
Rule from Section .0500 of thjs Subchapter shall provide 
documentation of number, size, number of hours of operation, 
and amount of total energy production per rolling 12-month 
period from all peak shav ing generators located at the facility to 
the Director upon request. The owner or operator of a facility 
exempted by this Rule from Section .0500 of this Subchapter 
shall retain records to document the amount of total energy 
production per year for the previous three vears. 

(f) For facilities covered bv this Rule, the owner or operator 
shall report to the Director anv exceedance of a requirement of 
this Rule within one week of its occurrence. 

.4uthorit\- G.S. 143-2 15.3(a): 143-215. I0'(a)(10): 143-215.108. 



W W X W X W X 



W W X X X X 



Notice IS hereby given in accordance with G.S. 150B-21.2 
that the NC Marine Fisheries Commission intends to adopt 
the rules cited as 15.4 NC.4C 3M.0515: 3P .0301-0304: amend 



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13:3 



PROPOSED RULES 



the rules cited as ISA NCAC 31.0101: 3J .0107. and. 0109: 3M 
.0503. .0507: 30.0303. .0306: 3P .0201 -.0203: and repeal the 
rule cited as 15 NCAC 3P .0103. Notice of Rule-making 
Proceedings was published in the Register on April I, 1998 for 
15 NCAC 3M.0503 and 30.0306: June 1, 1998 for 15A NCAC 
31 .0101: 3J .0107. .0109: 3M .0503. .0507. .0515: 30.0303. 
.0306: 3P.0103..0201-.0203, .0301-.0304. 

Proposed Effective Date: April 1. 1999 

Public Hearings will be conducted at 7:00 p.m. and will be 

followed by a public meeting at the following locations: 

August 20. 1998 

High Point. NC 

Radisson 

135 South Main Street 

August 25. 1998 
Manteo. NC 
Airport Road 

September 10. 1998 

Beaufort. NC 

Duke University Marine Lab 

Pivers Island 

September 21. 1998 

Wilmington, NC 

UNCW 

Cameron 

601 S College Road 

Reason for Proposed Action: 

ISA NCAC 31 .0101: This amendment will define long haul and 

swipe net operations and gear associated with these operations. 
ISA NCAC 3J .0107: This amendment will require escape 
panels in flounder pound nets. These panels allow small, 
undersize flounder to escape capture. 

ISA NCAC 3J .0109: This amendment will require escape 
panels in long haul nets. These panels Mill allow small, juvenile 
fish to escape capture. 

ISA NCAC 3M .0S03: Two recent joint .Atlantic States Marine 
Fisheries Commission/Mid-.4llantic Fishery Management 
Council actions require that North Carolina adopt these 
amendments to remain in compliance with the Summer 
Flounder. Scup and Black Sea Bass Fisher}' Management Plan. 
Amendments to G.S. 143B-289. 52(e) included in the Fisheries 
Reform Act of 1997 includes the authorit}- of the Marine 
Fisheries Commission to adopt rules to maintain compliance. 
ISA NCAC 3M .0S07: .Adoption of an interim rule by the 
National Marine Fisheries Service increasing the size limit for 
blue and white marlin allows the Marine Fisheries Commission 
to adopt a rule to comply with these increases in size. 
Amendment of this rule to delete references to dolphin will be 
necessary if 15A NCAC 3 M .0515 is adopted. 
ISA NCAC 3M .OSIS: Adoption of this rule will prevent 
expansion of the harvest of dolphin by the longline fishery and 



prevent user conflict. 

ISA NCAC 30.0303: The 1997 Fisheries Reform Act added the 
vessel endorsement to sell as a license to be placed under the 
moratorium. (From 1994-1997, the moratorium applied to 
vessel licenses, crab licenses, shellfish licenses, and non-vessel 
endorsements to sell.) The Appeals Panel operating rules 
adopted by the Commission need to be amended to take this 
recent change into account. 

ISA NCAC 30 .0306: Prior to the Fisheries Reform Act of 
1997. the Appeals Panel, in their review of petitions for new 
licenses, denied applications for subsistence purposes because 
licensees were entitled to obtain endorsement to sell licenses 
and enter the fishery with participants who fish and sell their 
catch. The Fisheries Reform Act placed a moratorium on the 
issuance of Endorsement to Sell Licenses. Therefore, the 
Appeals Panel can now issue hardship licenses to individuals 
who need the license for subsistence without being concerned 
that those individuals can obtain an Endorsement to Sell 
Licenses. The subsistence license would entitle the licensee to 
harvest resources with limited commercial gear at recreational 
limits. The 1997 Fisheries Reform Act added the vessel 
endorsement to sell as a license to be placed under the 
moratorium. (From 1994-1997. the moratorium applied to 
vessel licenses, crab licenses, shellfish licenses, and non-vessel 
endorsements to sell.) The Appeals Panel operating rules 
adopted by the Commission need to be amended to take this 
recent change into account. 

ISA NCAC 3P. 0103: Petitions for Regulatory Activity will be 
in a new section - ISA NCAC 3P .0300. 

ISA NCAC 3 P. 020 1 -.0203: Required by G.S ISOB-4 to outline 
the circumstances in which declaratory rulings shall or shall not 
be issued. 

ISA NCAC 3P .0301-.0304: To clarify the regulatoiy petition 
process. 

Comment Procedures: Comments, both written and oral, may 
be submitted at the four scheduled public hearings. Written 
comments are encouraged and may be submitted to the Marine 
Fisheries Commission, Juanita Gaskill, PO Box 769, Morehead 
City, NC 28557. These written and oral comments must be 
received no later than October 2, 1998. Oral presentation 
lengths may he limited, depending on the number of people that 
wish to speak at the public hearings. The Marine Fisheries 
Commission will hold public meetings at the conclusion of each 
of the four public hearings to receive public comments on limits 
(gear and fish) for recreational commercial gear licenses, 
coastal habitat protection plans, and other topics of interest to 
the public. 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government funds. These Rules do not 
have a substantial economic impact of at least five million 
dollars ($5,000,000) in a 12-month period. 

CHAPTER 3 - MARINE FISHERIES 

SUBCHAPTER 31 - GENERAL RULES 



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303 



PROPOSED RULES 



SECTION .0100 - GENERAL RULES 

.0101 DEFINITIONS 

(a) All detmitions set out in G.S. 1 13. Subchapter IV appl\ 
to this Chapter. 

(b) The following additional terms are hereb> defined: 



(1) 



Commercial Fishing Equipment. All fishing 
equipment used in coastal fishing waters except; 



(2) 



(3) 



(5) 
(6) 
(7) 

(8) 

(9) 



111) 



12) 



(13) 



(A) 
(B) 
(C) 



(D 



(E) 



Seines less than 12 feet in length: 
Spears: 

A dip net having a handle not more than eight 
feet in length and a hoop or frame to which the 
net is attached not exceeding 60 inches along 
the perimeter: 

Hook-and-line and bait-and-line equipment 
other than multiple-hook or multiple-bait 
trotline: 

A landing net used to assist in taking fish w hen 
the initial and primarv' method of taking is b\ 
the use of hook and line; and 
(F) Cast Nets. 

Fixed or stationan. net. A net anchored or staked to 
the bottom, or some structure attached to the bottom. 
at both ends of the net. 

Mesh Length. The diagonal distance from the inside 
of one knot to the outside of the other knot, when the 
net is stretched hand-tight. 

Possess. An\ actual or constructi\ e holding whether 
under claim of ownership or not. 
Transport. Ship. carr\. or cause to be carried or 
moved b\' public or private carrier by land. sea. or air. 
Use. EmploN. set. operate, or permit to be operated or 
emplo\ed. 

Purse Gill Nets. Any gill net used to encircle fish 
when the net is closed b\ the use of a purse line 
through rings located along the top or bottom line or 
elsew here on such net. 

Gill Net. A net set \erticall\ in the water to capture 
tlsh b\ entanglement b\ the gills in its mesh as a result 
of net design, construction, mesh size, webbing 
diameter or method in which it is used. 
Seine. A net set \erticall\ in the water and pulled b\ 
hand or power to capture fish bs encirclement and 
confining fish within itself or against another net. the 
shore or bank as a result of net design, construction, 
mesh size, webbing diameter, or method in which it is 
used. 

Internal Coastal \\'aters or Internal Waters. All 
coastal fishing waters except the Atlantic Ocean. 
Channel Net. A net used to take shrimp which is 
anchored or attached to the bottom at both ends or 
w ith one end anchored or attached to the bottom and 
the other end attached to a boat. 
Dredge. A de\ ice towed b\ engine power consisting 
of a frame, tooth bar or smooth bar. and catchbag used 
in the har\est of o\sters. clams, crabs, scallops, or 
conchs. 
Mechanical methods for clammina. Includes, but not 



limited to. dredges, hydraulic clam dredges, stick 
rakes and other rakes when towed by engine power, 
patent tongs, kicking with propellers or deflector 
plates w ith or without traw Is. and an\ other method 
that utilizes mechanical means to harvest clams. 

(14) Mechanical methods for o\stering. Includes, but not 
limited to. dredges, patent tongs, stick rakes and other 
rakes when towed b)' engine power and any other 
method that utilizes mechanical means to harvest 
oysters. 

(15) Depuration. Purification or the removal of 
adulteration from li\'e ONSters. clams, and mussels by 
an\ natural or artificialh controlled means. 

(16) Peeler Crab. A blue crab that has a soft shell 
de\eloping under a hard shell and having a definite 
pink, white, or red line or rim on the outer edge of the 
back fin or flipper. 

( 1 7) Length of finfishT 

(A) Total length is determined by measuring along 
a straight line the distance from the tip of the 
snout with the mouth closed to the tip of the 
compressed caudal (tail) fin. 

(B) Fork length is determined b\ measuring along 
a straight line the distance from the tip of the 
snout with the mouth closed to the middle of 
the fork in the caudal (tail) fin. 

(C) Fork length for billfish is measured from the 
tip of the lower jaw to the middle of the fork of 
the caudal (tail) tin. 

(18) Licensee. AnN person holding a \alid license from 
the Department to take or deal in marine fisheries 
resources. 

(19) Aquaculture operation. An operation that produces 
artificialh propagated stocks of marine or estuarine 
resources or obtains such stocks from authorized 
sources for the purpose of rearing in a controlled 
environment. A controlled en\ ironment provides and 
maintains throughout the rearing process one or more 
of the following: predator protection, food, water 
circulation. salinit\. or temperature controls utilizing 
proven technolog> not found in the natural 
en\ironment. 

(20) Critical habitat areas. The fragile estuarine and marine 
areas that support ju\enile and adult populations of 
economicalK important seafood species, as well as 
forage species important in the food chain. Critical 
habitats include nursen. areas, beds of submerged 
aquatic vegetation, shellfish producing areas, 
anadromous fish spawning and anadromous fish 
nursep. areas, in all coastal fishing waters as 
determined through marine and estuarine survey 
sampling. Critical habitats are \ital for portions, or 
the entire life cNcle. including the earl) growih and 
de% elopment of important seafood species. 

(A) Beds of submerged aquatic vegetation are those 
habitats in public trust and estuarine waters 
vegetated with one or more species of 
submersed \eeetation such as eelsrass (Zostera 



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PROPOSED RULES 



(21) 



(22) 



(23) 



(24) 



marina), shoalgrass (Halodule wrightii) and 
widgeongrass (Ruppia maritima). These 
vegetation beds occur in both subtidal and 
intertidal zones and may occur in isolated 
patches or cover extensive areas. In either 
case, the bed is defined by the presence of 
above-ground leaves or the below-ground 
rhizomes and propagules together with the 
sediment on which the plants grow. In 
defining beds of submerged aquatic vegetation, 
the Marine Fisheries Commission recognizes 
the Aquatic Weed Control Act of 1991 (G.S. 
113A-220 et. seq.) and does not intend the 
submerged aquatic vegetation definition and its 
implementing rules to apply to or conflict with 
the non-development control activities 
authorized by that Act. 

(B) Shellfish producing habitats are those areas in 
which economically important shellfish, such 
as, but not limited to clams, oysters, scallops, 
mussels, and whelks, whether historically or 
currently, reproduce and survive because of (25) 
such favorable conditions as bottom type, 
salinity, currents, cover, and cultch. Included 

are those shellfish producing areas closed to 
shellfish harvest due to pollution. 

(C) Anadromous fish spawning areas are defined 
as those areas where evidence of spawning of 
anadromous fish has been documented by 
direct observation of spawning, capture of 
running ripe females, or capture of eggs or 

early larvae. (26) 

(D) Anadromous fish nursery areas are defined as 
those areas in the riverine and estuarine 
systems utilized by post-larval and later 
juvenile anadromous fish. 

Intertidal Oyster Bed. A formation, regardless of size 

or shape, formed of shell and live oysters of varying 

density. 

North Carolina Trip Ticket. Multiple-part form 

provided by the Department to fish dealers who are 

required to record and report transactions on such (27) 

forms. 

Transaction. Act of doing business such that fish are 

sold, offered for sale, exchanged, bartered, distributed 

or landed. The point of landing shall be considered a 

transaction when the fisherman is the fish dealer. (28) 

Live rock. Living marine organisms or an assemblage 

thereof attached to a hard substrate including dead 

coral or rock (excluding mollusk shells). For 

example, such living marine organisms associated 

with hard bottoms, banks, reefs, and live rock may (29) 

include, but are not limited to: 

(A) Animals: 

(i) Sponges (Phylum Porifera); 

(ii) Hard and Soft Corals, Sea Anemones (30) 

(Phylum Cnidaria): 
(1) Fire corals (Class Hydrozoa); 



(B) 



Coral 

(A) 

(B) 



(II) Gorgonians, whip corals, sea 
pansies, anemones, Solenastrea 
(Class Anthozoa); 
(iii) Bryozoans (Phylum Bryozoa); 
(iv) Tube Worms (Phylum Annelida): 
(I) Fan worms (Sabellidae); 
(II) Feather duster and Christmas tree 

worms (Serpulidae); 
(III) Sand castle worms 

(Sabellaridae). 
(v) Mussel banks (Phylum 

Mollusca:Gastropoda); 
(vi) Colonial barnacles (Arthropoda: 

Crustacea: Megabalanus sp.). 
Plants: 

(i) Coralline algae (Division Rhodophyta); 

(ii) Acetabularia sp., Udotea sp., Halimeda 

sp., Caulerpa sp. (Division 

Chlorophyta); 

(iii) Sargassum sp., Dictyopteris sp., Zonaria 

sp. (Division Phaeophyta). 



Fire corals and hydrocorals (Class Hydrozoa); 

Stony corals and black corals (Class Anthozoa, 

Subclass Scleractinia); 
(C) Octocorals; Gorgonian corals (Class Anthozoa, 

Subclass Octocorallia): 
(i) Sea fans (Gorgonia sp.); 

(ii) Sea whips (Leptogorgia sp. and 
Lophogorgia sp.); 

(iii) Sea pansies (Renilla sp.). 
Shellfish production on leases and franchises: 

(A) The culture of oysters, clams, scallops, and 
mussels, on shellfish leases and franchises 
from a sublegal harvest size to a marketable 
size. 

(B) The transplanting (relay) of oysters, clams, 
scallops and mussels from designated areas 
closed due to pollution to shellfish leases and 
franchises in open waters and the natural 
cleansing of those shellfish. 

Shellfish marketing from leases and franchises. The 
harvest of oysters, clams, scallops, mussels, from 
privately held shellfish bottoms and lawful sale of 
those shellfish to the public at large or to a licensed 
shellfish dealer. 

Shellfish planting effort on leases and franchises. The 
process of obtaining authorized cultch materials, seed 
shellfish, and polluted shellfish stocks and the 
placement of those materials on privately held 
shellfish bottoms for increased shellfish production. 
Pound Net. A fish trap consisting of a holding pen, 
one or more enclosures, and a lead or leaders. The 
lead(s), enclosures, and holding pen are not conical, 
nor are they supported by hoops or frames. 
Educational Institution. A college, university or 
community college accredited by a regional 
accrediting institution. 



m 



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PROPOSED RULES 



tlD 
133J 



Long Haul Operations. A haul seine toued between 

two boats. 

Swipe Net Operations. A haul seine towed by one 

boat. 

Bunt Net. The last encircling net of a long haul or 

swipe net operation constructed of small mesh 

webbing. The bunt net is used to form a pen or pound 

from which the catch is dipped or bailed. 



Authority G.S. 113-154: N3B-289.4. 

SUBCHAPTER 3J - NETS, POTS, DREDGES, AND 
OTHER FISHING DEVICES 

SECTION .0100 - NET RULES, GENERAL 

.0107 POUND NETS 

(a) It is unlawfijl to use pound or i^^^e nets in internal coastal 
fishing waters without the owner's identification being clearK 
printed on a sign no less than six inches square. secureK 
attached on an outside comer stake of each such net. Such 
identification must include one of the following: 

( 1 ) For pound nets, the pound net permit number and the 
owner's last name and initials. 

(2) For fyke nets, the owTier's N.C. motorboat registration 
number or the owner's last name and initials. 

An\ pound or f\ke net or an> part thereof found set in internal 
coastal fishing waters without proper identification will be in 
violation and ma\ be removed and disposed of in accordance 
with G.S. 11 3-1 3'?. 

(b) It is unlawful to set pound nets, or an\ part thereof except 
location identification stakes at each end of proposed new 
locations without tlrst obtaining a Pound Net Permit from the 
Fisheries Director 

(I) For proposed new locations, the Fisheries Director 
shall issue a public notice of intent to consider 
issuance of a Pound Net Permit, and ma\ hold public 
meetings to take comments on the proposed pound net 
set. The Fisheries Director shall appro\ e or den\ the 
permit uithin 60 da\s of application. The Fisheries 
Director ma\ den\ the permit application if it is 
determined that granting the permit will be 
inconsistent with one or more of the following 
permitting criteria: 

(A) The application is in the name of an indi\idual. 

(B) The proposed pound net set. either alone or 
when considered cumulatively with other 
existing pound net sets in the area, will not 
unduK interfere w ith public navigation. 

(C) The proposed pound net set. either alone or 
when considered cumulatively with other 
existing pound net sets in the area, will not 
unduK interfere w ith existing, traditional uses 
of the area other than navigation. 

(D) The proposed pound net set will not interfere 
with the rights of an\ riparian or littoral 
landowner, including the construction or use of 
piers. 



(E) The proposed pound net set will not, by its 
proximate location, unduly interfere with 
existing pound net sets in the area. 

(F) The applicant has in the past complied with 
fisheries laws related to pound nets. 

(G) The proposed pound net set is in the public 
interest. 

Approval ma},- be conditional based upon the 
applicant's continuing compliance with specific 
conditions contained in the Pound Net Permit that 
would ensure that the operation of the pound net is 
consistent w ith the criteria for permit denial set out in 
Parts (A) through (G) of this Subparagraph. The 
Fisheries Director's final decision to approve or deny 
the Pound Net Permit application ma\ be appealed b>' 
filing a petition for a contested case hearing, in 
writing, within 60 days notice of such action, with the 
Office of Administrative Hearings. 

(2) An application for renewal of an existing Pound Net 
Permit shall be filed not less than 10 da\s prior to the 
date of expiration of the existing permit, and shall not 
be processed unless filed by the prior permittee. 
When a written objection to a renewal has been 
received during the term of the existing permit, the 
Fisheries Director shall review the renewal 
application under the criteria for issuance of a new 
Pound Net Permit, and ma\ decline to renew the 
permit accordingly. 

(3) A Pound Net Permit, whether a new or renewal 
permit, shall expire 365 da\s from the date of 
issuance. 

(c) It is unlawftjl to abandon an existing pound net set without 
completeK removing from the public bottom or coastal waters 
all stakes and associated structures, gear and equipment w ithin 
30 da> s. or to fail within 30 da\s to completeK remo\ e from the 
public bottom or coastal waters all stakes and other structures, 
gear and equipment associated with an>' pound net set for w hich 
a permit is re\oked or denied. Pound nets shall be fulK 
operational and subject to inspection during the peak of their 
respective fishing seasons. Consideration shall be given for 
unusualK se\ere weather conditions which prevent the nets from 
being fulK operational during the inspection period. Herring 
pounds max be inspected two weeks prior to or after April 1. 
sciaenid pounds r^vo weeks prior to or after Jul>' 15. flounder 
pounds two weeks prior to or after October 1 5. bait pounds two 
weeks prior to or after April 15. and shrimp pounds two weeks 
prior to or after June 15. A violation under this Paragraph shall 
be grounds for the Fisheries Director to re\ oke an\ other Pound 
Net Permits held by the violator and for denial of an\ future 
pound net set proposed b\ the offender 

(d) It is unlawful to transfer ownership of a pound net without 
notification to the Di\ision of Marine Fisheries within 30 da\s 
of the date of the transfer Such notification shall be made b>' 
the new owner in writing and shall be accompanied b\ a cop\ of 
the pre\ ious owner's permit and an application for a pound net 
permit in the new owner's name. Failure to do so shall result in 
re\ocation of the pound net permit. 

(e) E\en, pound net set shall ha\e a marked na\igational 



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1998 



13:3 



PROPOSED RULES 



opening of at least 25 feet in width at the end of every third 
pound. Such opening shall be marked with yellow light 
reflective tape or devices on each side of the opening. The light 
reflective tape or devices shall be affixed to a stake of at least 
three inches in diameter, shall cover a vertical distance of not 
less than 12 inches, and shall be visible from all directions by a 
vessel approaching the pound net set. In addition, every pound 
net in internal coastal fishing waters shall have yellow light 
reflective tape or devices on each pound. The light reflective 
tape or devices shall be affixed to a stake of at least three inches 
in diameter on the offshore end of each pound, shall cover a 
vertical distance of not less than 12 inches, and shall be visible 
fi-om all directions by a vessel approaching the pound net set. If 
a permittee notified of a violation under this Paragraph fails or 
refuses to take corrective action sufficient to remedy the 
violation within 15 days of receiving notice of the violation, the 
Fisheries Director shall revoke the permit. 

(f) In Core Sound, it is unlawful to use pound nets in the 
following areas except that only those persons holding a valid 
pound net permit within the specified area as of March 1 , 1994, 
may renew their permits subject to the requu^ements of this Rule: 

(1) That area bounded by a line beginning at Green Day 
Marker #3 near Hog Island Point running 124° (M) to 
Green Flasher #13; thence 026° (M) to Green Flasher 
#11; thence 294° (M) to a point on shore north of 
Great Ditch 34° 58' 54" N - 76° 15' 06" W; thence 
following the shoreline to Hog Island Point 34° 58' 
27" N - 76° 15' 49" W; thence 231° (M) back to 
Green Day Marker #3. 

(2) That area bounded by a line beginning at Green Day 
Marker #3 near Hog Island Point running 218° (M)to 
Cedar Island Point 34° 57' 33" N - 76° 16' 34" W; 
thence 156° (M) to Red Flasher #18; thence 01 1 ° (M) 
to Red Flasher #2; thence 302° (M) back to Green 
Marker #3. 

(3) That area bounded by a line beginning on Long Point 
34° 56' 52" N- 76° 16' 42" W; thence running 105° 
(M) to Red Marker #18; thence running 220° (M) to 
Green Marker #19; thence following the six foot 
contour past the Wreck Beacon to a point at 34° 53' 
45" N - 76° 18' 11" W; thence 227° (M) to Red 
Marker #26; thence 229° (M) to Green Marker #27; 
thence 271° (M) to Red Flasher #28; thence 225 ° (M) 
to Green Flasher #29; thence 256° (M) to Green 
Flasher #3 1 ; thence 22 1 ° (M) to Green Flasher #35; 
thence 216° (M) to Green Flasher #37; thence 291 ° 
(M) to Bells Point 34° 43' 42" N - 76° 29' 59" W; 
thence north following the shoreline of Core Sound 
across the mouth of Jarrett Bay, Oyster Creek, Fulcher 
Creek, Willis Creek, Nelson Bay, Styron Bay, East 
Thorofare Bay and Rumley Bay, back to Long Point. 

(g) In Pamlico Sound, it is unlawfijl to set a pound net, pound 
net stakes, or any other related equipment without radar 
reflective metallic material and yellow light reflective tape or 
devices on each end of the pound net set. The radar reflective 
material and the light reflective tape or devices must be affixed 
to a stake of at least three inches in diameter, must cover a 
vertical distance of not less than 12 inches, and must be 



detectable by radar and light from a vessel when approached 
from all directions. Light reflective tape or devices may be 
affixed to the radar reflective material, 
(h) Escape Panels: 
(1) The Fisheries Director may, by proclamation, require 
escape panels in pound nets and may impose any or 
all of the following restrictions on the use of escape 
panels: 
(A)fl-) Specify size, number, and location. 
tB}(3) Specify mesh length, but not more than six 

inches. 
(C)f^ Specify time or season. 
tD)f4) Specify areas. 
£2} It is unlawful to use flounder pound nets without four 
unobstructed escape panels m each pound. The 
escape panels must be fastened to the bottom and 
comer ropes on each wall on the side and back of the 
pound opposite the heart. The escape panels must be 
a minimum mesh size of five and one-half inches, 
hung on the diamond, and must be at least six meshes 
high and eight meshes long. 

Authority G.S. 113-134: 113-152; 113-182; 113-221; 
1 43 B-2 89.53. 

.0109 LONG HAUL/SWIPE NET FISHING 
OPERATIONS 

It is unlawful to tow or pull a net in a long-haul or swipe net 
fishing operation: 

( 1 ) Without a floating buoy attached a minimum of every 
100 yards along the cork line. The buoy shall be 
international orange and shall be no less than five 
inches in diameter and no less than 11 inches in 
length; and 

(2) Without a flag, square in shape, international orange 
in color, at least 24 inches by 24 inches in size, fiying 
in the rigging so as to be visible when approaching the 
vessel from any direction. 

(3) South and west of a line beginning on the west shore 
of Pamlico Sound at Bluff Point 35° 19' 32" N - 76° 
09' 20" W; thence running 129° (M) to a point on 
shore on Ocracoke Island at 35° 08' 00" N - 75° 55' 
00" W. without escape panels as follows: 

(a) For long haul operations, two panels four feet 
deep and six feet long must be installed in the 
bailing end of the bunt net. 

(b) For swipe net operations, two panels three feet 
deep and five feet long must be installed in the 
bailing end of the bunt net. 

(c) One panel shall be installed within 12 inches of 
the float line and the other panel shall be 
installed within 12 inches of the lead (bottom) 
line. 

£d} The panels shall be constructed of 
unobstructed trawl rings with an inside 
diameter no less than one and nine-sixteenth 
inches tl 9/16"). The rings shall be fastened 
together at a maximum of four points per ring. 



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Authority G.S. 113-134: 113-IS2: 143B-289.4. 
SUBCHAPTER 31V1 - FINFISH 
SECTION .0500 - OTHER FINFISH 

.0503 FLOUNDER 

(a) It is unlawful to possess flounder: 

( 1 ) Less than 1 3 inches total length taken from internal 
waters: 

(2) Less than 14 inches total length taken from the 
Atlantic Ocean with commercial fishing equipment or 
by hook-and-line or gig if claiming the exemption 
specified in Paragraph (t~) of this Rule: 

(3) Less than 15 \A^ inches total length taken from the 
Atlantic Ocean by hook-and-line or gig. 

(b) From B e tw ee n October 1 through and April 30. it shall be 
unlawful to use a trawl in the Atlantic Ocean within three miles 
of the ocean beach from the North Carolina/Virginia state line 
(35° 33' N) to Cape Lookout (34° 36' N) unless each trawl has 
a cod end (tailbag) mesh length of gr e at e r than 5 '2 inches or 
larger diamond mesh (stretched) or 6 inches or larger square 
mesh (stretched) applied throughout the bod\. e\tension(s) and 
the cod end (tailbag) of the net cod e nd for at l e ast 75 continuous 
meshes forward of th e t e rminus ( e nd) of th e n e t. or th e t e rminal 
on e third portion of a net. measured from th e t e rminus of th e cod 
e nd to th e h e ad rop e for cod e nds with l e s s than 75 m es h e s, 
except as provided in Paragraphs (h) and (i) of this Rule. 

(c) License to Land Flounder from the Atlantic Ocean: 

(1) It is unlawful to land more than 100 pounds per trip of 
flounder taken from the Atlantic Ocean unless the 
vessel has been issued a License to Land Flounder 
from the Atlantic Ocean. 

(2) It is unlawful for a fish dealer to purchase or offload 
more than 100 pounds of flounder taken from the 
Atlantic Ocean b\ a vessel that has not first procured 
a valid North Carolina License to Land Flounder from 
the Atlantic Ocean. 

(3) To qualiiA for a North Carolina License to Land 
Flounder from the Atlantic Ocean, a vessel shall have: 

(A) been licensed under G.S. 1 13-152 or 1 13-153 
during any two of the 1992-93. 1993-94. or 
1994-95 license years, and 

(B) landed in North Carolina at least 1 .000 pounds 
of flounder each \ ear from the Atlantic Ocean 
during any two of the 1992-93. 1993-94. or 
1994-95 license years for which the vessel was 
licensed to land in North Carolina. 

(4) At least 10 da\s prior to issuance, applicants for the 
license shall complete an application form provided 
by the Division of Marine Fisheries and submit it to 
the North Carolina Division of Marine Fisheries. Post 
Office Box 769. 3441 Arendell Street. Morehead 
City. North Carolina 28557. The following 
information is required: 

(A) Valid documentation papers or current motor 
boat registration or copy thereof; 

(B) Proof of required licenses and flounder 



landings data for that vessel during the years 

the vessel was licensed. 
Licenses shall be issued to qualifying vessels at no fee 
and only from the Morehead City Office of the 
Division of Marine Fisheries. 

(5) Licenses may only be transferred: 

(A) with the transfer of the ownership of a vessel 
holding a License to Land Flounder from the 
Atlantic Ocean to the new owner of that vessel; 
v e ssel, or 

(B) by the owner of a vessel to another vessel 
under the same ownership. The vessel owner 
is only eligible for the same number of 
Licenses to Land Flounder from the Atlantic 
Ocean for which his boats qualify; qualify'. 

(C) any transfer of license under this Paragraph 
must be facilitated through the Division of 
Marine Fisheries Morehead City Office only. 

(6) It is unlawful for any individual to land flounder from 
the Atlantic Ocean without having ready at hand for 
inspection a valid License to Land Flounder from the 
Atlantic Ocean, except as specified in Subparagraph 
(c)(1) of this Rule. 

(7) Suspension or Revocation: 

(A) A License to Land Flounder from the Atlantic 
Ocean issued under this Rule shall be subject 
to suspension or revocation pursuant to the 
provisions of 15A NCAC 3P. except that this 
license shall be subject to revocation pursuant 
to the provisions of G.S. 113-166 when the 
licensee is convicted of a criminal offense 
within the jurisdiction of the Department under 
the provisions of Subchapter IV of G.S. 113, or 
of the rules of the Marine Fisheries 
Commission adopted under the authority of 
that Subchapter 

(B) The Division may commence proceedings 
under 15A NCAC 3P. for suspension or 
revocation of a License to Land Flounder from 
the Atlantic Ocean if it finds: 

(i) the license was obtained by providing 
any false information or willfully 
omitting required information when the 
information is material to the securing 
of the license; or 

(ii) the license was falsified, fraudulently 
altered, or counterfeited; or 

(iii) the licensee practices any fraud or 
deception designed to evade the 
provisions of this Rule or reasonable 
administrative directives made under the 
authority of this Rule or G.S. 113- 
182(b)(3). 

(d) It is unlawful to transfer flounder taken from the Atlantic 
Ocean from one vessel to another 

(e) It is unlawful to possess more than eight +0 flounder per 
person per da\ taken bv hook-and-line or gig from the Atlantic 
Ocean. 



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PROPOSED RULES 



(f) Persons fishing from a vessel with a valid vessel 
endorsement to sell or persons fishing but not from a vessel who 
hold a valid nonvessel endorsement to sell are exempt from the 
possession limit in Paragraphs (a)(3) and (e) of this Rule. 

(g) Tailbag liners of any mesh size, the multiple use of two or 
more cod ends, or other netting material that in any way could 
restrict the legal size mesh required by this Rule, shall not be 
used or possessed on the deck of a vessel in the Atlantic Ocean 
from b e tw ee n October 1 through and April 30 from the North 
Carolina/Virginia state line (36° 33' N) to Cape Lookout (34° 
36' N). 

(h) Trawls with a cod end mesh size smaller than described in 
Paragraph (b) of this Rule may be used or possessed on the deck 
of a vessel provided not more than 1 00 pounds of flounder per 
trip from May 1 through October 3 1 or more than 200 pounds 
from November 1 through April 30 is possessed aboard or 
landed from that vessel. 

(i) Flynets are exempt from the flounder trawl mesh 
requirements if they meet the following definition: 

( 1 ) The net has large mesh in the wings that measure 8 
inches to 64 inches; 

(2) The first body section (belly) of the net has 35 or 
more meshes that are at least 8 inches; and 

(3 ) The mesh decreases in size throughout the body of the 
net to as small as 2 inches or smaller towards the 
terminus of the net. 

(j) Commercial Season. 

(1 ) The North Carolina season for landing ocean-caught 
flounder shall open January 1 each year. If 70 percent 
of the quota allocated to North Carolina in accordance 
with the joint Mid-Atlantic Fishery Management 
Council/Atlantic States Marine Fisheries Commission 
Mid Atlantic Fish e ri e s Manag e m e nt Council Atlantic 
Stat e s — Marin e — Fi s h e ri es — Commi s sion Fishery 
Management Plan for Summer Flounder is projected 
to be taken, the Fisheries Director shall, by 
proclamation, close North Carolina ports to landing of 
flounder taken from the ocean. 

(2) The season for landing flounder taken in the Atlantic 
Ocean shall reopen November 1 if any of the quota 
allocated to North Carolina in accordance with the 
joint Mid-Atlantic Fishery Management 
Council/Atlantic States Marine Fisheries Commission 
Mid Atlantic Fish e ri e s Manag e m e nt Council Atlantic 
Stat e s — Marin e — Fish e ri e s — Commission Fishery 
Management Plan for Summer Flounder remains. If 
after reopening, 100 percent of the quota allocated to 
North Carolina in accordance with the joint Mid- 
Atlantic Fishery Management Council/Atlantic States 
Marine Fisheries Commission Mid Atlantic Fish e ri e s 
Manag e m e nt Council Atlantic Stat e s Marin e Fish e ri e s 
Commi ss ion Fishery Management Plan for Summer 
Flounder is projected to be taken prior to the end of 
the calendar year, the Fisheries Director shall, by 
proclamation, close North Carolina ports to landing of 
flounder taken from the ocean. 

(3) During any closed season prior to November 1, 
vessels may land up to 100 pounds of flounder per 



trip taken from the Atlantic Ocean, 
(k) The Fisheries Director may, by proclamation, establish trip 
limits for the taking of flounder from the Atlantic Ocean to 
assure that the individual state quota allocated to North Carolina 
in the joint Mid- Atlantic Fishery Management Council/Atlantic 
States Marine Fisheries Commission Mid Atlantic Fi s h e ri es 
Manag e m e nt — Council Atlantic — Stat e s — Marine — Fi s h e ri e s 
Commission Fishery Management Plan for Summer Flounder is 
not exceeded. 

Authorities. 113-134; 113-182: 113-221: 143B-289.4. 

.0507 RECREATIONAL FISHING RESTRICTIONS 

(a) Blue marlin: 

(1 ) It is unlawflil to possess blue marlin less than 96 8^ 
inches in length from the lower jaw to the fork in the 
tail. 

(2) It is unlawflil to possess more than one blue marlin 
per person per day. 

(b) White marlin: 

( 1 ) It is unlawful to possess white marlin less than 66 63 
inches in length from the lower jaw to the fork in the 
tail. 

(2) It is unlawful to possess more than one white marlin 
per person per day. 

(c) Sailfish: 

( 1 ) It is unlawflil to possess sailfish less than 57 inches in 
length from the lower jaw to the fork in the tail. 

(2) It is unlawful to possess more than one sailfish per 
person per day. 

(d) Cobia: 

( 1 ) It is unlawflil to possess cobia less than 33 inches fork 
length taken by hook-and-line. 

(2) It is unlawful to possess more than two cobia per 
person per day taken by hook-and-line. 

( e ) Dolphin: 

(4-) It is unlawful to poss e ss mor e than 10 dolphin p e r 



p e rson p e r day. 
(3) Ex e mptions: 

{Ac) Charter vessels with a valid National Marin e 

Fisheries — Service — Charter — V e ss e l — Coastal 
Migratory' Pelagic Permit and lic e ns e d by th e 
y^S^ — Coast — Guard to — carr>' — &»? — ef — less 
pass e ng e r s for hir e , may possess a maximum of 
60 dolphin p e r day r e gardless of th e numb e r of 
p e opl e on board. 

(B^ V e ss e l s with a valid commercial National 

Marin e Fish e ri e s S e rvic e Federal Coastal 

Migratory P e lagic Permit including 

chart e rboats wh e n fishing with thr ee or l e ss 
persons (including captain and mat e ) on board 
ar e e x e mpt from the cr e el limits s e t out in 
Subparagraph (o)(l ) of this Rul e . 

Authority G.S. 113-134: 113-182: 113-221: 143B-289.4. 

.0515 DOLPHIN 

ft is unlawful to possess more than 10 dolphin ( Con'phaena 



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PROPOSED RULES 



hippitrus ) per person per day, 

(1 ) Exemptions: 

(a) Charter vessels with a vaUd National Marine 
Fisheries Ser\ice Charter Vessel Coastal 
Migrators Pelagic Permit and licensed by the 
U.S. Coast Guard to carrN six or less 
passengers for hire, may possess a maximum of 
60 dolphin per day regardless of the number of 
people on board. 

(b) Vessels with a valid commercial National 
Marine Fisheries Ser\ice Federal Coastal 
MigratorN' Pelagic Permit including 
charterboats (when fishing with three or less 
persons including captain and mate on board) 
are exempt from the creel limits set out in this 
Paragraph of this Rule, except jt js unlawful to 
possess or land more than 4.000 pounds of 
dolphin per vessel p er trip. 

(2) Quota. The annual (January through December) 
commercial quota for dolphin landed in North 
Carolina is 360.000 pounds. If 200.000 pounds of the 
quota is projected to be taken, the Fisheries Director 
shall, by proclamation, reduce the trip limit in 
Subltem (l)(b) of this Rule to 750 pounds, if the 
quota is projected to be taken the Fisheries Director 
shall. b\ proclamation, close North Carolina ports to 
the commercial landing of dolphin. 

(3) It is unlawful to transfer dolphin from one vessel to 
another. 

AuthorinG.S. 113-134: 113-182: 113-221: 143B-289.5. 

SUBCHAPTER 30 - LICENSES, LEASES, AND 
FRANCHISES 

SECTION .0300 - LICENSE APPEAL PROCEDURES 

.0303 APPEAL PETITION AND OTHER EVIDENCE 

(a) Under the Statutes authorizing issuance of special licenses 
in cases of emergencies or hardships, the most important 
criterion is the demonstration of emergency or hardship. The 
Appeals Panel must and shall deny petitions which fail to 
demonstrate emergency or hardship consistent with the 
provisions of 15A NCAC 30 .0305 and .0306. 

(b) The contents of an appeal petition are as follows: 

( 1 ) Petitions that do not contain the follow ing items shall 
be returned to the petitioner w ithout being processed: 

(A) A completed Appeals License Application: 

(B) A statement of the license(s) being requested: 

(C) Where a \essel license is requested, a cop\ of 
the registration/documentation information 
which identities the vessel; 

(D) The petitioner's notarized signature: and 

(E) Where petitioners are not residents of North 
Carolina, certification from the fisheries 
agencN of their resident state or jurisdiction 
showing, for the time period beginning July 1. 
1991 to the present, all licenses held and an\ 



violations or convictions entered against them, 
or the lack thereof. 

(2) In addition, a petition shall include: 

(A) A statement of emergency or hardship 
consistent with the standards in this Section: 

(B) A list of license suspensions and revocations, 
and convictions of fisheries offenses in any 
state or jurisdiction during the past three years; 

(C) The reason(s) for failure to obtain the 
license(s) before July I. 1994; 1994. and jn the 
case of vessel endorsements to sell, between 
1994 and August 15. 1997; 

(D) A list of commercial fishing license(s). from 
any state or jurisdiction, held b\ the petitioner 
since Jul>- I. 1991, with identifying license 
number and issuing agency; and 

(E) Request for oral argument, if desired. 

(3) A petition may be accompanied b\'; 

(A) Evidence demonstrating the extent to which the 
petitioner relies on commercial fishing as a 
li\elihood. such as tax records, sales records, 
trip tickets, and similar information; 

(B) Sworn affidavits b\ others verif\ing or 
supporting the information in the petition; 

(C) Exhibits and an) other evidence to be offered 
in support of the appeal; and 

(D ) A statement w ai\ ing the opportunit\ to repK' to 
the Division of Marine Fisheries 
recommendation. 

(c) Requests for oral arguments ma\ onl> be made in the 
appeal petition. 

(d) Petitions, evidence, and supporting information ma\ only 
be filed w ith the Division of Marine Fisheries at its offices in 
Morehead City or by mailing to Post Office Box 769. Morehead 
Cit>. North Carolina 28557-0769. The petition shall not be 
processed until the petitioner provides an original and four 
copies of the petition and supporting information. 

(e) The Division of Marine Fisheries shall submit its 
recommendation and an\ other relevant information on each 
appeal to the Appeals Panel v\ithin 10 working da\s of the 
receipt of a complete petition. On the same day the 
recommendation is sent to the Appeals Panel, the Division of 
Marine Fisheries shall serve a copv of its recommendation on the 
petitioner bv depositing it in first class mail, hand deliver., or 
facsimile delivery. 

(f) Any repK to the Division of Marine Fisheries 
recommendation must be filed with the Division of Marine 
Fisheries within 10 days after the recommendation is served. 
The petition shall not be processed until the petitioner provides 
an original and four copies of the reph and supporting 
information. 

Auihorin- G.S. 113-134: 113-153.1: 1993, c. 5^6. s. 3; 
I43B-289.4 (Regular Session 1994). 

.0306 HARDSHIP LICENSES 

The following criteria v\ill be applied in approv ing or denying 
petitions based on hardship: 



ALL 



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13:3 



PROPOSED RULES 



(1) A petition will be denied unless it demonstrates at 
least one of the following circumstances: 

(a) For each license applied for, the petitioner has 
held that license or an equivalent commercial 
fishing license from North Carolina or from 
another state or jurisdiction in two out of the 
past three y e ars; years prior to the moratorium 
applicable to that license; and petitioner can 
demonstrate extenuating or extraordinary 
circumstances which prevented him or her 
from obtaining the North Carolina commercial 
fishing license for 1993 199 4 ; 1993-1994 or, in 
the case of the vessel endorsement to sell, for 
any of the years from 1994 through 1997; 

(b) It can be demonstrated that petitioner did not 
obtain a 1993-1994 license because petitioner 
was on active military duty outside the state 
and that for two out of the three years previous 
to going on active military duty, petitioner held 
the license being applied for; 

(c) The petitioner has become 16 years of age 
since June 30, 1994; has a history of 
commercial fishing with their parent or 
guardian; and holds a Shellfish or Crab 
License; 

(d) A member of the petitioner's immediate family, 
who holds a current license, has died, is 
incapacitated, or is retiring from the 
commercial fishery; the petitioner needs the 
license to continue in that fishery operation; 
and the family member will surrender the 
license upon approval of the petition; 

(e) The petitioner js applying for a commercial 
vessel license; does not have and has not 
applied for a vessel endorsement to sell fish; 
can demonstrate that the license is necessary to 
provide nutritional subsistence for petitioner's 
household which petitioner is otherwise unable 
to afford; and petitioner agrees to restrict 
possession of fish to recreational size and creel 
limits; or 

(f}(e) The petitioner can demonsfrate facts similar in 
hardship to the preceding situations. 

(2) Hardship and emergency licenses are issued solely to 
the petitioner based upon individual demonstration of 
need. A petition may be denied if the Appeals Panel 
finds that the petitioner is unable to demonstrate a 
substantial adverse effect on his or her livelihood in 
the event the license is denied. 

(3) The petition shall be denied if, the petitioner has a 
history of fishing law violations which would cause 
petitioner to be ineligible for a license in North 
Carolina or has a history of substantial noncompliance 
with federal or state laws, regulations, or rules for the 
protection of marine and estuarine resources in any 
state or jurisdiction. 

(4) The holder of a current and valid hardship license on 
June 30 of the license year has the same eligibility to 



renew the license as persons not subject to the 
moratorium. 



Authority G.S. 113-134; 113-153.1; 
3;143B-289.4 (Regular Session 1994). 



1993. c. 576, s. 



SUBCHAPTER 3P - HEARING PROCEDURES 



SECTION .0100 - HEARING PROCEDURES 

.0103 PETITIONS FOR REGULATORY ACTIVITY 

(a) Any p e rson(s) d e siring to r e quest th e adoption, 
am e ndment, or r e p e al of a rul e may mak e such r e qu e st in a 
petition filed pursuant to G.S. 150B 20, addr e ss e d to th e Marin e 
Fisheri e s Commission, and mail e d to th e Divi s ion of Marin e 

Fisheri e s. Stieh — p e titions — shaH — contain — the — following 

information: 

(4^ A draft of th e propo se d rul e or a summary of it s 

int e nt. 
(3) R e asons for adoption of th e propo se d rul e (s) and 

e ff e ct on e xisting rul es and practic e s. 
(^ Nam e and addr e ss of th e p e tition e r(s). 
(b^ P e titions will b e plac e d on the agenda for the next 
regularly sch e dul e d Marin e Fish e ri e s Commis s ion me e ting if 
rec e iv e d at l e ast four w ee ks prior to th e m ee ting. The Fisheries 
Dir e ctor will pr e par e r e comm e nd e d r es pons e s to petitions for the 
Commission's consid e ration. — P e titions will b e con s id e r e d in 
accordance with th e r e quir e m e nt s of G.S. 150B 20. 

Authority' G.S. 113-134; 143B-289.4; 150B-20. 



SECTION .0200 - DECLARATORY RULINGS 

.0201 DECLARATORY RULINGS: GENERALLY 

At the request of any person aggrieved, as defined in G.S. 
150B-2(6), the Marine Fisheries Commission may issue a 
declaratory ruling as provided in G.S. 150B-4. 

Authorit\'G.S 113-134; 1 1 3-182; 1438-289.53; 1508-4. 



.0202 PROCEDURE FOR REQUESTING 
DECLARATORY RULINGS 

(a) All requests for a declaratory ruling shall be filed jn 
writing with the Director of the Division of Marine Fisheries, 
Department of Environment and Natural Resources (DENR), PO 
Box 769, Morehead City, North Carolina 28557. All requests 
shall include the following: the aggrieved person's name and 
address; the rule, statute or order upon which a ruling is desired; 
a concise statement as to whether the request is for a ruling on 
the validity of a rule or on the applicability of a rule, order or 
statute to a given factual situation; arguments or data which 
demonstrate that the petitioner is aggrieved by the rule or statute 
or its potential application to him; a statement of the 
consequences of a failure to issue a declaratory ruling in favor 
of the petitioner; and a statement of whether an oral argument is 
desired, and, if so, the reasons for requesting such an oral 
argument. 

(b) A request for a ruling on the applicability of a rule, order. 



m 



NORTH CAROLINA REGIS 



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m 



PROPOSED RULES 



or statute must include an undisputed description of the factual 
situation on which the ruling is to be based. A request for a 
ruling on the validity of a Commission rule must state the 
aggrieved person's reasons for questioning the validit\ ot" the 
rule. A person may ask for both types of rulings in a single 
request. A request for a ruling must include or be accompanied 
by: 

(1) a statement of the undisputed facts proposed for 
adoption by the Commission; and 

(2) a draft of the proposed ruling. 

(c) Before deciding the merits of the request, the Commission 
may: 

( 1) request additional written submissions from 
petitioner! s): 

(2) request a written response from the Division staff or 
any other person; or 

(3) hear oral argument from the petitioner(s) and Division 
staff. 

(d) Unless the Division waives the opportunity to be heard, it 
shall be a party to any request for declaratory ruling. Upon 
written request, the requesting party and the Division ma\' each 
be allowed to present oral arguments to the Commission at a 
regularly scheduled meeting. Neither part\' may offer testimony 
or conduct cross-examination before the Commission. The 
declaratory ruling shall be determined on the basis of the 
statement of undisputed facts submitted by the parties. 

(e) Whenever the Commission believes "for good cause" that 
the issuance of a declaratory ruling is undesirable, the 
Commission may refuse to issue such ruling. The Commission 
shall notify in writing the person requesting the ruling, stating 
the reasons for the refusal to issue a ruling on the request. 

(f) For purposes of Paragraph (e) of this Rule, the 
Commission shall ordinarily refuse to issue a ruling on a request 
for declaratory ruling on finding that: 

( 1 ) the petitioner(s) and the Division cannot agree on a 
set of undisputed facts sufficient to support a 
meaningful ruling; 

(2) there has been a similar determination in a previous 
contested case or declaratory ruling; 

(3) the matter is the subject of a pending contested case 
hearing or litigation in any North Carolina or federal 
court; or 

(4) no genuine controversy e.xists as to the application of 
a statute or rule to the undisputed factual situation 
presented. 

(g) The Commission shall keep a record of each declaratory 
ruling, which shall include at a minimum the follow ing items: 

(1) the request for a ruling; 

any written submissions by the parties; 

the statement of undisputed facts on which the ruling 

was based; 

any transcripts of oral proceedings, or. in the absence 

of a transcript, a summary of all arguments; 

(5) any other matter considered by the Commission in 
making the decision; and 

(6) the declaratory ruling, or the decision to refuse to 
issue a declaratory ruling, together uith the reasons 
therefore. 






(h) A declaratory ruling is binding on the Commission and the 
person requesting it unless it is altered or set aside by the court. 
The Commission may not retroactively change a declaratory 
ruling, but nothing in this Section prevents the Commission from 
prospectively changing a ruling. 

(jj Unless the requesting party consents to the delay, failure 
of the Commission to issue a ruling on the merits or deny the 
request within 60 days of receipt of the request for such ruling 
shall constitute a denial of the request as well as a denial of the 
merits of the request and shall be subject to judicial review. 

Authority G.S. 113-134: 113-182: 143B-289.53: 150B-4. 

.0203 DEFINITION 

For purposes of Rule .0202 of this Subchapter, a declaratory 
ruling shall be deemed to be "in effect" until the statute or rule 
interpreted by the declaratory ruling is amended, altered or 
repealed; until the Commission changes the declaratory' ruling 
prospectively for good reasons; or until any court sets aside the 
ruling in litigation between the Commission or Department of 
Environment and Natural Resources and the party requesting the 
rule; or until any court of the Appellate Division of the General 
Court of Justice shall construe the statute or rule which is the 
subject of tlie declaratory ruling in a manner plainly 
irreconcilable with the declaratory ruling. 

Authority G.S. 113-134: 113-182: 143B-289.53: 150B-4. 

SECTION .0300 - PETITIONS FOR RULEMAKING 

.0301 FORM AND CONTENTS OF PETITION 

(a) Any person wishing to request the adoption, amendment. 
or repeal of a rule of thie Marine Fisheries Commission 
(hereinafter referred to as tlie Commission) shall make his 
request in a written petition addressed to tlie Chairman of the 
Marine Fisheries Commission and submitted to the Commission 
staff at: 



Marine Fisheries Commission 

Division of Marine Fisheries 

PO Box 769 

Morehead Citv. North Carolina 28557. 

(b) The petition shall contain the following information: 



ti) 
t6j 



ID 



(8j 



the text of the proposed rule(s); 

the statutory authority for the agency to promulgate 

the rule(s); 

a statement of tlie reasons for adoption of the 

proposed rule(s); 

a statement of the effect on existing rules; 

copies of any documents and data supporting the 

proposed rule(s); 

a statement of tlie effect of frie proposed rule(s) on 

existing practices in the area involved, including an 

estimate of cost factors for persons affected by the 

proposed rule(s); 

a description of those most likely to be affected by the 

proposed rule(s); and 

the name(s) and address(es) of the petitioner(s). 



(c) When petitions and supporting documents and data exceed 



312 



NO. 



m^smsmiM 



August 3. 1998 



13:3 






PROPOSED RULES 



10 pages in length. 15 copies of the entire petition and any 
attachments shall be submitted. 

(d) Petitions failing to contain the required information shall 
be returned by the Marine Fisheries Commission Chairman. 



the petition of the decision in writing; or 
(2) deny the petition in writing, stating the reason or 
reasons for the denial, and send the written denial to 
the person(s) who submitted the petition. 



Authority G.S. 113-134: 113-182; 
143B-289.51; 143B-289.52; 150B-20. 



.0302 



113-182.1: 113-201: 



REVIEW BY A COMMITTEE OF THE 
COMMISSION 

(a) The Marine Fisheries Commission Chairman may refer 
duly submitted petitions to the appropriate standing advisop>' 
committee(s) or other advisory committee(s) of the Commission 
for review and recommended action. Copies of petitions for 
rulemaking shall be distributed to the Commission members 
when referred to a committee of the Commission. 

(b) The Chairman of the Committee assigned to review a 
submitted petition for rulemaking shall announce the date of a 
meeting to consider the petition within 1 days of the assignment 
of the petition. 

(c) At least 15 days before the Committee meeting, the 
Committee Chairman shall send notice of the Committee 
meeting to the petitioner, members of the Commission, and 
persons who have requested notice of petitions for rulemaking. 

(d) The petitioner shall be afforded the opportunity to present 
the petition for rulemaking to the Committee. The Director, 
through staff, may make a presentation to the Committee. 

(e) Interested persons must request the opportunirs^ to make 
a presentation to the Committee(s) through the Committee(s) 
chair(s). The request shall: 

state the interest of the person. 

the person's position on the petition for rulemaking. 

and 
(3) be accompanied by supporting materials. 
The Chairman of the Committee will determine whether 
additional interested persons make oral presentations before the 
Committee. 






(f) The Chairman of the Committee will determine whether 
a public meeting should be conducted by the Committee before 
it makes a recommendation on the petition for rulemaking. 

(g) During the Committee's review, members of the 
Commission, other than Committee members, who are present 
may participate as a member of the Committee in discussions of 
the petition but may not vote on the recommended action on the 
petition. 

Authority G.S. 113-134: 113-182: 143B-289.52: 150B-20. 

.0303 PRESENTATION TO THE COMMISSION 

(a) Petitions for rulemaking, when deemed complete by the 
Marine Fisheries Commission Chairman, shall be presented to 
the Marine Fisheries Commission for its consideration and 
determination at the next regularly scheduled meeting of the 
Commission. 

(b) Within 120 days following submission of the petition 
requesting rulemaking, the Marine Fisheries Commission shall: 

(1) initiate rulemaking proceedings in accordance with 
G.S. 1 50B-20 and notifS' the person(s) who submitted 



Authority G.S. 113-134: 113-182: 143B-289.51: 150B-20. 

.0304 RECOURSE TO DENIAL OF THE PETITION 

If the Marine Fisheries Commission denies the petition for 
rulemaking, the petitioner(s) may seek judicial review of the 
denial under G.S. 150B. Article 4 of Chapter 150B of the 
General Statutes. 

Authority G.S 113-134: 113-182: 1433-289.51: 150B-20. 



TITLE 21 - OCCUPATIONAL LICENSING 
BOARDS 

CHAPTER 11 - NORTH CAROLINA BOARD 
OF EMPLOYEE ASSISTANCE PROFESSIONALS 

Notice is hereby given in accordance with G.S. 150B-21.2 
that the North Carolina Board of Employee Assistance 
Professionals intends to adopt the rules cited as 21 NCAC 11 
.0101-. 0112. Notice of Rule-making Proceedings was published 
in the Register on .April 1. 1998. 

Proposed Effective Date: .April 1. 1999 

Instructions on How to Demand a Public Hearing. A demand 
for public hearing must be requested in writing within 15 days 
of this notice and addressed to Charlotte F. Hall, Division of 
MH/DD/S.4S, 325 N. Salisbuiy Street, Albemarle Building 
Raleigh. NC 27603-5906. 

Reason for Proposed Action: 1995 Session, Chapter 720. 
House Bill An Act to Create the North Carolina Board of 
Employee .Assistance Professionals and to Provide for the 
Licensing of Employee Assistance Professionals. 

Comment Procedures: Written comments should be submitted 
to Charlotte F. Hall, Rule-making Coordinator Division of 
Mental Health Developmental Disabilities and Substance Abuse 
Services, 325 N. Salisbuiy Street. .Albemarle Building. Raleigh, 
NC 27603-5906. 

Fiscal Note: These Rules, 21 NCAC 11 .0101-.0112 affect the 
expenditure or distribution of State and local government funds. 
These Rules do not have a substantial economic impact of at 
least five million dollars (55,000,000) in a 12-month period. 

SECTION .0100 - ADMINISTRATION 

.0101 SCOPE 

(a) This Subchapter sets forth rules for the North Carolina 
Board of Employee Assistance Professionals. 



ma^mmwrn^^^^ 



PROPOSED RULES 



(b) The mailinK address of the Board is POBox 10344, 
Raleigh, North Carolina 27605-0344. 

Authority G.S. 90-509. 

.0102 COMPOSITION OF BOARD MEMBERS 

(a) Board members shall be appointed m accordance with 
G.S. 90-501 and may serve successive annual terms as either 
Chair or Secretary'. 

(b) A Chair and a Secretary shall be elected at the first 
meeting of each calendar year. 



requirements for licensure. 

(b) The Board shall review each completed application for 
renewal of licensure and issue a renewal license to an applicant 
who meets the requirements for renewal. 

(c) Upon application for an initial or renewal license, the 
Board shall ensure that each applicant agrees, m writing, to 
comply with the Employee Assistance Certification Commission 
Code of Professional Conduct and the Employee Assistance 
Professional Association Code of Ethics. 

Authority' G.S. 90-505. 



Authority G.S. 90-501: 90-511. 

.0103 BOARD MEETINGS 

(a) Board meetings shall be held quarterly. 

(b) The Board Chair may call special meetings as necessary 
to conduct business. 

(c) Board meetings shall be noticed in accordance with the 
Open Meetings Law set forth in G.S. 143-318.12 Public Notice 
of Official Meetings. 

Authority G.S 90-501 143-318.12. 

.0104 LICENSE APPLICATION 

(a) The Board shall prescribe the forms to be used for 
submitting an application for initial or renewal licensure. 

(b) An application shall not be considered complete unless it 
is submitted using the prescribed form and the unless the Board 
has received the application fee. 

(c) Specific information contained in both the initial and 
renewal applications shall be deemed confidential as prescribed 
by the Board. 

(d) Both an initial and renewal license are valid for a period 
of three years. 

Authority- G.S 90-503. 

.0105 TRANSCRIPTS AND OTHER SUPPORTING 
DOCUMENTS 

(a) Official educational transcripts submitted to support an 
application for licensure shall be received bv the Board directly 
from the educational institution. 



(b) Transcript course titles which are ambiguous and do not 
conve\ the content of courses shall require an applicant to 
provide other documents and information to support claimed 
educational credentials. Such documents may be official catalog 
descriptions, course syllabi, reading lists, term papers, theses and 
written research. 



(c) A current copy of an applicant's certification by the 
Employee Assistance Certification Commission, as an employee 
assistance professional, shall be submitted with the application. 

Author it}' G.S. 90-503. 

.0106 REVIEW OF APPLICATIONS 

(a) The Board shall review each com pleted initial application 
for licensure and issue a license to an applicant who meets the 



.0107 NOTICE OF DENIAL OF INITIAL OR 
RENEWAL APPLICATION 

(a) The Board shall notify each applicant, in writing, of the 
reason for which an application for initial licensure 

or renewal of licensure was denied. 

(b) The applicant shall have the right to file a petition for a 
contested case hearing in accordance with G.S. 150B. Article 3. 

Authority G.S 90-505: 150B. Article 3. 

.0108 DISCIPLINARY ACTION/HEARING 

(a) The Board shall impose reasonable discipline for conduct 
it finds in violation of G.S. 90-509. only after conducting a 
hearing in accordance with G.S. 150B. Article 3. 

(b) Board disciplinary action may include: 

(1 ) admonishment: a serious warning for mild 



12} 



misconduct; 
reprimand: 



a public rebuke and sanction for 



OJ 



(4) 



(c) 



misconduct, which may require follow-up actions by 
the licensee; 

suspension: withdrawal of the privilege of using the 
title of Licensed Employee Assistance Professional 
during the time frame specified by the Board; and 
revocation: permanent withdrawal of the privilege of 
using the title of Licensed Employee Assistance 
Professional. A Licensed Employee Assistance 
Professional whose license is revoked by die Board 
must surrender the license certificate to the Board. 
Any disciplinary action may be suspended for a 
reasonable period not to exceed one year upon such terms and 
conditions as thie Board deems appropriate, if in the sole 
discretion of the Board, it is in the best public interest to do so. 

(d) The Board deems disciplinan, action to be those terms 
stated. 

(e) Notification of final disciplinarN' action shall be made to 
the Employee Assistance Professionals Association and the 
Employee Assistance Certification Commission, within 30 days 
of the final action taken by the Board. 

.Authority G.S. 90-506: 150B. Article 3. 

.0109 CURRICULA AND MINIMUM STANDARDS 
FOR TRAINING 



m 



«itt^HM«ii6 



am^m 



?■•■? 



m 



PROPOSED RULES 



The Board shall adopt and incorporate by reference the 
minimum continuing education requirements of the Employee 
Assistance Certification Commission. This referenced material 
shall include any subsequent editions and amendments. It may 
be obtained from the EACC/Certification Department/EAPA. 
2101 Wilson Blvd., Suite 500, Arlington, Virginia 22201-3022. 
Cost of the documents vary. 

Authoring G.S. 90-500. 



Authorit}' G.S. 90-500 

.0111 FEES 

(a) Upon submission of an application for initial licensure, a 
fee of one hundred dollars ($100.00) shall be paid to the Board. 

(b) A fee of seyenty-five dollars (S75.00) shall be paid to the 
Board for renewal of license. 

(c) Neither an initial or a renewal application shall be 
considered complete until the required fee is paid. 



.0110 ETHICAL STANDARDS 

(a) The Board shall adopt and incorporate by reference the 
Code of Professional Conduct for Certified Employee 
Assistance Professionals, Fourth Edition. This referenced 
material shall include any editions and amendments promulgated 
by the Employee Assistance Certification Commission. 

(b) The Board shall also adopt and incorporates by reference 
the Employee Assistance Professionals Association Code of 
Ethics. This referenced material shall include any subsequent 
editions and amendments. It may be obtained at no cost from the 
EACC/Certification Department/EAPA, 2101 Wilson Blvd.. 
Suite 500, Arlington. Virginia 22201-3022. 



Authority G.S. 90-503. 

.0112 PENALTIES 

In accordance with G.S. 90-506 and 90-509, when requested, 
the Board shall review its assessment of a civil penalty against 
an individual jn a contested case hearing as set forth in G.S. 
1 50B, Article s. 

Authority G.S. 90-506; 90-509; 150B. Article 3. 



13:3 



NORTH CAROLINA REGISTER 



muk 



1998 



m 



TEMPOR.4R Y RULES 



The CoJifier of Rules has entered the following temporaiy ritle(s) in the North Carolina Administrative Code. Pursuant to G.S. 
150B-2I. 1(e). publication of a temporary- rule in the North Carolina Register sen'es as a notice of rule-making proceedings 
unless this notice has been previously published by the agency. 



TITLE 10 - DEPARTMENT OF HEALTH AND 
HUMAN SERVICES 

Rule-making Agency: DHHS - Division of Medical Assistance 

Rule Citation: 10 NC.4C 26H .0304 

Effective Date: August ^ 1998 

Findings Reviewed by Julian Mann: Approved 

Authority for the rule-making: G.S. 108A-25fb): I08A-54: 
108.4-55: 42 C.F.R. Part 447. Subpart C 

Reason for Proposed Action: The Division of Facility Services 
has cited many ICF-MR facilities as needing fire sprinkler 
systems. In addition, providers recognize the need for 
installation of said systei7is. 

Comment Procedures: Written comments concerning this rule- 
making action must be submitted to Portia If. Rochelle. Rule- 
Making Coordinator. Division of Medical .Assistance. 1985 
Umstead Drive. Raleigh. NC 2 "603. 

CHAPTER 26 - MEDICAL ASSISTANCE 

SUBCHAPTER 26H - REIMBURSEMENT PLANS 

SECTION .0300 - IFC-MR PROSPECTIVE RATE 
PLAN 

.0304 RATE SETTING METHOD FOR NON-STATE 
FACILITIES 

(a) A prospective rate shall be determined annuail\ for each 



non-state facility to be effective for dates of service for a 12 
month rate period beginning each JuK I . The prospective rate 
shall be paid to the provider for every Medicaid eligible day 
during the applicable rate year. The prospective rate ma\ be 
determined after the effective date and paid retroactively to that 
date. The prospective rate ma\ be changed due to a rate appeal 
under Rule .0308 of this State Plan or facility reclassification 
under Paragraph (b) of this Rule. Each non-state facility, except 
those facilities where Paragraph (v) of this Rule applies, shall be 
classified into one of the following groups: 

(1) Group 1- Facilities with 32 beds or less. 

(2) Group 2- Facilities with more than 32 beds. 

(3) Group 3- Facilities with medically fragile clients. For 
rate reimbursement purposes under this Rule 
medically fragile clients are defined as an\ individual 
with complex medical problems who have chronic 
debilitating diseases or conditions of one or more 
physiological or organ systems which generally make 
them dependent upon 24-hour a day 
medical nursing'liealth supervision or intervention. 

(4) Facilities in group 1 or 2 in Subparagraph (a)( 1 ) or (2) 
of this Rule shall be further classified in accordance 
to the level of disability of the facility's clients, as 
measured b\ the Developmental Disabilities Profile 
(DDP) assessment instrument which along with the 
scoring instrument are hereby incorporated by 
reference, including subsequent amendments and 
editions. This material is available for inspection and 
copies ma\ be obtained from the Div ision of Medical 
Assistance. 1985 Umstead Dri\e. Raleigh. North 
Carolina 27603 at a cost of rwentv' cents ($.20) per 
page. A summan. of the levels of disability is shown 
in the following chart: 



FACILITY DDP SCORE 



Level 



Low 



Hieh 



1 

2 
3 
4 

5 



200.00 


300.00 


125.00 


199.99 


100.00 


124.99 


75.00 


99.99 


50.00 


74.99 



(b) Facilities shall be reclassified into appropriate groups as 
defined in Paragraph (a) of this Rule. 

(1) When a facilits is reclassified, the rate shall be 
adjusted retroacti\el\ back to the date of the event 
that caused the reclassification. This adjustment shall 
give full consideration to any reclassification based on 
the chanae in facts or circumstances during the \ean 



(2) 



0\erpa\Tnents related to this retroacti\e rate 
adjustment shall be repaid to the Medicaid program. 
Underpayments related to this retroactive rate 
adjustment shall be paid to the provider. 
The pro\ ider shall be given the opportunity to appeal 
the merits of the reclassification of any facility, prior 
to an\' decision b\ the Di\ision of Medical 



316 



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AusustS. 1998 



13:3 



TEMPORAR Y R ULES 



Assistance. 

(3) The provider shall be notified in writing 30 days 
before the implementation of new rates resulting from 
the reclassification of any facility. 

(4) The providers and the Division of Medical Assistance 
shall make every reasonable effort to ensure that each 
facility is properly classified for rate setting purposes. 

(5) A provider shall file any request for facility 
reclassification in writing with the Division of 
Medical Assistance no later than 60 days subsequent 
to the proposed reclassification effective date. 

(6) For facilities certified prior to July 1, 1993, the 
facility DDP score calculated for fiscal year 1993 
shall be used to establish proper classification at July 
1, 1995. 

(7) For facilities certified after June 30, 1993, the most 
recent facility DDP score shall be used to establish 
proper classification. 

(8) A facility reclassification review shall use the most 
current facility' DDP score. 

(9) A facility's DDP score shall be subject to independent 
validation by the Division of Medical Assistance. 

(10) A new facility that has not had a DDP survey 
conducted on its clients shall be categorized as a level 
2 facility for rate setting purposes, pending 
completion of the DDP survey. Upon completion of 
the DDP survey, the facility shall be subject to 
reclassification and rates shall be adjusted 
retroactively back to the date of certification. 
Overpayments related to this retroactive adjustment 
shall be paid to the Medicaid program. 
Underpayments related to this retroactive rate 
adjustment shall be paid to the provider 
(c) Facility rates under this Rule shall be established at July 
1, 1995, under the following: 

(1) For facilities certified prior to July 1, 1993. rates shall 
be derived from the 1 993 cost reports. 

(2) For facilities certified during fiscal year 1993-1994, 
the fiscal year 1994 facility specific cost report shall 
be used to derive rates. 

(3) For facilities certified during fiscal year 1994-1995, 
the fiscal year 1995 facility specific cost report shall 
be used to derive rates. 

(A) Rates for these facilities shall not be adjusted, 
except for the impact of inflation under 
Paragraph (k) of this Rule, until the fiscal year 
1995 cost report has been properly reviewed. 
Rates for these facilities shall be adjusted 
retroactively back to July 1, 1995, once the 
fiscal year 1995 facility specific cost report has 
been properly reviewed. Overpayments related 
to this retroactive rate adjustment shall be 
repaid to the Medicaid program. 
Underpayments related to this retroactive rate 
adjustment shall be paid to the provider. 

(4) Facilities with rates established during a rate appeal 
proceeding with the Division of Medical Assistance 
during fiscal years 1994 or 1995 shall not have their 



rates established in accordance with Subparagraph 

(c)(1), (c)(2), or (c)(3) of this Rule. 

(A) The rates for these facilities shall remain at the 
level approved in the rate appeal proceeding 
adjusted only for inflation, as reflected in 
Paragraph (k) of this Rule. 

(d) For facilities certified after June 30, 1993, rates developed 
from filed cost reports for fiscal years subsequent to 1 993 may 
be retroactively adjusted if there is found to exist more than a 
two percent difference between the filed per diem cost and either 
the desk audited or field audited per diem cost for the same 
reporting period. Rates developed from desk audited cost 
reports may be retroactively adjusted if there is found to exist 
more than a two percent difference between the desk audited per 
diem cost and the field audited per diem cost for the same 
reporting period. The rate adjustment may be made after written 
notification to the provider 30 days prior to implementation of 
the rate adjustment. 

(e) Each prospective rate developed in accordance with 
Subparagraph (c)(1). (c)(2), or (c)(3) of this Rule consists of the 
sum of two components as follows: 

( 1 ) Indirect care rate. 

(2) Direct care rate. 

(f) A uniform industry wide indirect care rate shall be 
established for each facility category shown under Subparagraph 
(a)(1), (a)(2), or (a)(3) of this Rule. 

( 1 ) The indirect rate for group 1 facilities is based on the 
fiftieth percentile of the following costs incurred by 
all group 1 facilities with six beds or less, except 
those related by common ownership or control to 
more than 40 said facilities: 

(A) The sum of the cost of property ownership and 
use, administrative and general, and operation 
and maintenance of plant, as determined by the 
Myers and Stauffer study performed on the 
1 993 base year cost reports. 

(2) The indirect rate for group 2 facilities is based on the 
fiftieth percentile of the costs noted in Part (f)(1)(A) 
of this Rule incurred by the group 2 facilities, as 
determined by the Myers and Stauffer study 
performed on the 1 993 base year cost reports. 

(3) The indirect rate for group 3 facilities is based on the 
fiftieth percentile of the costs noted in Part (f)(1)(A) 
of this Rule incurred by the group 3 facilities, as 
determined by the Myers and Stauffer study 
performed on the 1 993 base year cost reports. 

(4) The indirect rates established under Subparagraphs 
(f)(1), (f)(2), and (f)(3) of this Rule shall be reduced 
as determined based on industry cost analysis by an 
amount not to exceed four percent to account for 
expected operating efficiencies. 

(g) The direct care rate for facilities certified prior to July 1, 
1993, shall be based on the Myers and Stauffer study performed 
on the 1993 base year cost reports. 

(1) The direct care rate for all facilities certified during 
fiscal years subsequent to fiscal year 1 993 is based on 
the first facility specific cost report filed after 
certification. Based on said cost report, the direct care 



13:3 



NORTH CAROLINA REGISTER 



Ausust3, 1998 



317 



TEMPO R.4 RYR UL ES 



rate is equal to the sum of all allowable costs reflected 
in the ICF-MR cost report cost centers, as included in 
the ICF-MR cost report format effecti\e JuK 1. 1993. 
except for the follow ing indirect cost centers: 

(A) Propert) Ownership and Use 

(B) Operation and Maintenance of Plant and 
Housekeeping-Non-Labor 

(C) Administrative and General 

(2) The direct care rate shall be limited to the lesser of the 
actual amount incurred in the base \ear or the cost 
limit deri\ed from the fiftieth percentile of direct care 
costs incurred b\ the related facilir\ group in the fiscal 
Near 1993 base >ear. based on the Msers and Stauffer 
stud> . 

(3) The fiftieth percentile cost limit shall be reduced b\ 
one percent each year, for the four year period 
beginning JuK' 1. 1996. in order to account for 
expected operating efficiencies, as determined based 
on industn, cost anaK sis. 

(4) The fiftieth percentile cost limit shall be increased 
each \ear b\ price le\el changes calculated in 
accordance with Paragraph (k) of this Rule. 

(h) The indirect rate shall not be subject to cost settlement. 

(1) Costs abo\e the indirect rate shall not be paid to the 
pro\ider. 

(2) Costs sa\ings below the indirect rate shall not be 
recouped from the pro\ ider. 

(i) The direct care rate shall be subject to cost settlement, 
based on the cost report, subject to audit, filed with the Di\ ision 
of Medical .Assistance. 

( 1 ) Costs abo\e the direct rate shall not be paid to the 
pro\ider. 

(2) Cost sa\ings below the direct rate shall be recouped 
from the provider. 

('}) Facilities with rates established during a rate appeal 
proceeding with the Division of Medical .Assistance during fiscal 
\ears 1994 or 1995 ma> choose to cost settle under the 
pro\isions of Paragraphs (h) and (i) of this Rule, or under the 
follow ing procedure: 

( 1 ) If. during a cost reporting period, total allowable costs 
are less than total prospecti\e pa\ments. then a 
pro\iderma> retain one-half of said difference, up to 
an amount of fi\e dollars (S5.00) per patient da\. The 
balance of unexpended pasments shall be refunded to 
the Di\ ision of Medical Assistance. Costs in excess 
of a facility's total prospecti\e pa>ment rate are not 
reimbursable. 

(2) The facilities subject to the Paragraph shall make the 
election on cost settlement methodolog\ on or before 
the tiling of the annual cost report with the Di\ ision 
of Medical Assistance. 

(3) An election to follow the cost settlement procedures 
of Paragraphs (h) and (i) of this Rule shall be 
irre\ocable. 

(4) Rates established for these facilities during future rate 
appeal proceedings shall be subject to the cost 
settlement procedures of Paragraphs (h) and (i) of this 
Rule. 



(k) To compute each facility's current prospective rate, the 
direct and indirect rates established by Paragraphs (f) and (g) of 
this Rule shall be adjusted for price level changes since the base 
Near. No inflation factor for an_\ pro\ider shall exceed the 
maximum amount permitted for that provider by federal or state 
law and regulations. 

(1) Price level adjustment factors are computed using 
aggregate costs in the follow ing manners: 

(A) Costs shall be separated into three groups: 

(i) Labor, 
(ii) Non-labor, 
(ill) Fixed. 

(B) The relative weight of each cost group is 
calculated to the second decimal point by 
di\ iding the total costs of each group (labor, 
nonlabor. and fixed) by the total cost of the 
three categories. 

(C) Price level adjustment factors for each cost 
group shall be established as follows: 

(i) Labor. The percentage change for labor 
costs is based on the projected average 
hourK w age of North Carolina service 
workers. Salaries for all personnel shall 
be limited to levels of comparable 
positions in state owned facilities or 
le\els specified b> the Division of 
Medical Assistance. 

(ii) Nonlabor. The percentage change for 
nonlabor costs is based on the projected 
annual change in the implicit price 
deflator for the Gross National Product 
as provided b\ the North Carolina 
Office of State Budget and 
Management. 

(iii) Fixed. No price le\el adjustment shall 
be made for this categor\. 

(D) The weights computed in Part (k)(l )(B) of this 
Rule shall be multiplied b\ the rates computed 
in Part (k)(l)(C) of this Rule. These weighted 
rates shall be added to obtain the composite 
inflation rate to be applied to both the direct 
and indirect rates. 

(1) Effective JuK 1. 1995. an\ rate reductions resulting from 
this State Plan shall be implemented based on the following 
deferral methodolog\ : 

( 1 ) Rates shall be reduced for the excess of current rates 
o\ er base \ ear costs plus inflation. 

(2) Rates shall be reduced a maximum of 50 percent of 
the fiscal 1996 inflation rate for the excess of actual 
costs o\er applicable cost limits. This reduction shall 
result in the facility receiving at a minimum 50 
percent of the 1996 inflation rate. An\ excess 
reduction shall be carried forward to future sears. 

(3) Total reduction in future years related to the excess 
reduction carried fonsard fi"om Subparagraph (l)(2) of 
this Rule, shall not exceed the annual rate of inflation. 
This reduction shall result in the facility recei\ ing at 
a minimum the rate established in Paragraph (1)(2) of 



318 



WRTH CAROLINA REGISTER 



Alls list 3, 1998 



13:3 



TEMPORAR Y R ULES 



this Rule. Any excess reduction shall be carried 
forward to future years, until the established rate 
equals that generated by Paragraphs (f), (g), and (k) of 
this Rule. 
(4) Rates calculated based on Subparagraphs (1)(2) and 
(3) of this Rule shall be cost settled based on the 
provisions of Subparagraph G)(l) of this Rule until 
the fiscal year that the facility receives full price level 
increase under Paragraph (k) of this Rule. 

(A) A provider may make an irrevocable election to 
cost settle under the provisions of Paragraphs 
(h) and (i) of this Rule during the deferral 
period. 

(B) Once the rates calculated based on 
Subparagraphs (1X2) and (3) of this Rule reach 
the fiscal year that the facility receives the full 
price level increase under Paragraph (k) of this 
Rule, then said fiscal year's rates shall be cost 
settled based on Paragraphs (h) and (i) of this 
Rule. 

(C) Chain providers are allowed to file combined 
cost reports, for cost settlement purposes, for 
facilities that use the same cost settlement 
methodology and have the same uniform rate. 

(D) A provider may request from the Division of 
Medical Assistance permission to continue cost 
settlement under Subparagraph {j)(l) of this 
Rule after the deferral period expires. Said 
request shall be made each year, 30 days prior 
to the cost report due date. 

(m) The initial rate for facilities that have been awarded a 
Certificate of Need is established at the lower of the fair and 
reasonable costs in the provider's budget, as determined by the 
Division of Medical Assistance, or the projected costs in the 
provider's Certificate of Need application, adjusted from the 
projected opening date in the Certificate of Need application to 
the current rate period in which the facility is certified based on 
the price level change methodology set forth in Paragraph (k) of 
this Rule, or the rate currently paid to the owning provider, if the 
provider currently has an approved chain rate for facilities in the 
related facility category. The rate may be rebased to the actual 
cost incurred in the first full year of normal operations in the 
year an audit of the first year of normal operation is completed. 

(1) In the event of a change in ownership, the new owner 
receives no more than the rate of payment assigned to 
the previous owner. 

(2) Except in cases wherein the provider has failed to file 
supporting information as requested by the Division 
of Medical Assistance, initial rates shall be granted to 
new enrolled facilities no later than 60 days from the 
provider's filing of properly prepared budgets and 
supporting information. 

(3) The initial rate for a new facility shall be applicable to 
all dates of service commencing with the date the 
facility is certified by the Medicaid Program. 

(4) The initial rate for a new facility shall not be entered 
into the Medicaid payment system until the facility is 
properly enrolled in the Medicaid program and a 



Medicaid identification number has been assigned to 
the facility by the Division of Medical Assistance, 
(n) A provider with more than one facility may be allowed to 
recover costs through a combined uniform rate for all facilities. 

(1) Combined uniform rates for chain providers shall be 
approved upon written request ft-om the provider and 
after review by the Division of Medical Assistance. 

(2) In determining a combined uniform rate for a 
particular facility group, the weighted average of each 
facility's rate, calculated in accordance to all other 
provisions of this Rule, shall be used. 

(3) A chain provider with facility(s) that fall under 
Paragraphs (h) and (i) of this Rule and with facility(s) 
that fall under Subparagraph (1)(4) of this Rule may 
elect to include the facilities in a combined cost report 
and elect to cost settle under either Paragraphs (h) and 
(i) or Subparagraph (1)(4) of this Rule. The cost 
settlement election shall be made each year, 30 days 
prior to the cost report due date. 

(o) Each out-of-state provider shall be reimbursed at the 
lower of the applicable North Carolina rate, as established by 
this plan for in-state facilities, or the provider's per diem rate as 
established by the state in which the provider is located. An out- 
of-state provider is defined as a provider that is enrolled in the 
Medicaid program of another state and provides ICF-MR 
services to a North Carolina Medicaid client in a facility located 
in the state of enrollment. Rates for out-of-state providers are 
not subject to cost settlement. 

(p) Under no circumstances shall the Medicaid per diem rate 
exceed the private pay rate of a facility. 

(q) Should the Division of Medical Assistance be unable to 
establish a rate for a facility, based on this Rule and the 
applicable facts known, the Division of Medical Assistance may 
approve an interim rate. 

(1) The interim rate shall not exceed the rate cap 
established under this Rule for the applicable facility 
group. 

(2) The interim rate shall be replaced by a permanent rate, 
effective retroactive to the commencement of the 
interim rate, by the Division of Medical Assistance, 
upon the determination of said rate based on this Rule 
and the applicable facts. 

(3) The provider shall repay to the Division of Medical 
Assistance any overpayment resulting from the 
interim rate exceeding the subsequent permanent rate. 

(r) In addition to the prospective per diem rate developed 
under this Rule, effective July 1, 1992, an interim payment add 
on shall be applied to the total rate to cover the estimated cost 
required under Title 29, Part 1910. Subpart 2, Rule 1910.1030 
of the Code of Federal Regulations. The interim rate shall be 
subject to final settlement reconciliation with reasonable cost to 
meet the requirements of Rule 1910.1030. The final settlement 
reconciliation shall be effectuated during the annual cost report 
settlement process. An interim rate add on to the prospective 
rate shall be allowed, subject to final settlement reconciliation, 
in subsequent rate periods until cost history is available to 
include the cost of meeting the requirements of Rule 1910.1030 
in the prospective rate. This interim add on shall be removed. 



m 



M 



mummmm^^mmA 



tt 



TEMPOHARY RULES 



upon 10 days written notice to providers, should it be determined 
b\ appropriate authorities that the requirements under Title 29. 
Part 1910. Subpart 2. Rule 1910.1030 of the Code of Federal 
Regulations do not appK to ICF-MR facilities. 

(s) All rates, except those noted otherwise in this Rule. 
appro\ed under this Rule are considered to be permanent. 

(t) in the event that the rate for a facility cannot be de\eloped 
so that it shall be effective on the first da\ of the rate period, due 
to the provider not submitting the required reports b\ the due 
date, the average rate for facilities in the same facility group, or 
the facility's current rate, whichever is lower, shall be in effect 
until such time as the Division of Medical Assistance can 
develop a nev\ rate. 

(u) When the Div ision of Medical Assistance develops a ne\s 
rate for a facilit\ for which a rate was paid in accordance with 
Paragraph (t) of this Rule, the rate developed shall be effective 
on the first dav of the second month following the receipt b\ the 
Division of Medical Assistance of the required reports. The 
Division of Medical Assistance may, upon its own motion or 
upon application and just cause shown bv' the provider, within 60 
davs subsequent to submission of the delinquent report, make the 
rate retroactive to the beginning of the rate period in question. 
Anv- o\erpa\ment to the provider resulting fi"om this temporary- 
rate being greater than the final approved prospective rate for the 
facility shall be repaid to the Medicaid Program. 

(v) ICF-MR facilities meeting the requirements of the North 
Carolina Di\ ision of Facility Services as a facility affiliated with 
one or more of the four medical schools in the state and 
pro\ iding ser\ ices on a statewide basis to children w ith various 
de\elopmental disabilities who are in need of long-term high 
acuity nursing care, dependent upon high technology machines 
(i.e. ventilators and other supporti\e breathing apparatus) 
monitors, and feeding techniques shall have a prospective 
payment rate that approximates cost of care. The payment rate 
may be reviewed periodically, no more than quarterly, to assure 
proper payment. A cost settlement at the completion of the fiscal 
period year end is required. Payments in excess of cost are to be 
returned to the Division of Medical Assistance. 

(w ) A special payment in addition to the prospecti\e rate shall 
be made in the year that any provider changes fi"om the cash 
basis to the accrual basis of accounting for vacation lea\e costs. 
TTie amount of this payment shall be determined in accordance 
with Title .Will allowable cost principles and shall equal the 
Medicaid share of the vacation accrual that is charged in the year 
of the change including the cost of vacation leave earned for that 
year and all pre\ious years less \acation lea\e used or expended 
over the same time period and v acation lea\e accrued prior to the 
date of certification. The payment shall be made as a lump sum 
payment that represents the total amount due for the entire fiscal 
year. An interim payment may be made based on an estimate of 
the cost of the vacation accrual. The payment shall be adjusted 
to actual cost after audit. 

(x) The annual prospective rate, effective beginning each July 
1, for facilities that commenced operations under the Medicaid 
Program subsequent to the base y ear used to establish rates, and 
therefore did not file a cost report for the base year, shall be 
based on the facility's initial rate, established in accordance w ith 
Paragraph (m) of this Rule, and the applicable price le\el 



changes, in accordance with Paragraph (1) of this Rule. 

(y) Effective for fiscal years beginning on or after fiscal year 
1998. installation cost of Fire Sprinkler Systems in an ICF-MR 
Facility shall be reimbursed in the following manner 

( 1 ) Upon receipt of the documentation listed in Parts (A) 
through (E) of this Subparagraph, the Di\ision of 
Medical Assistance shall reimburse directly to the 
provider 90 percent of the verified cost. 
(A) All related invoices. 



m 

(CJ 
(21 The 



Verification from the Division of Facility 

Services that the Sprinkler S\ stem is needed. 

Statement from appropriate authorities that the 

Sprinkler Svstem has been installed. 

Three bids to install the svstem. 

Prior approval from the Division of Medical 

Assistance for any installation projected to cost 

more than twentv-five thousand dollars 

(S25.000). 

unreimbursed 



13} 



installation cost shall be 
reimbursed after audit through the annual Cost 
Settlement Process. This portion shall be offset by 
profits, after taking into consideration anv indirect 
profits and direct losses. Anv overpayments 
determined after audit shall be returned to the 
program by the provider through the annual cost 
settlement process. 

The installation of the Sprinkler System is subject to 
Prudent Buver Standards contained in the HCFA-15. 
The Sprinkler System's installation costs shall be 
properly recorded on the proyider's ICF-MR Cost 
Report. 



Histon- Note: Filed as a Temporary Amendment Eff. July 8. 

1993 for a period of 180 days or until the permanent rule 

becomes effective, whichever is sooner: 

Authorit}-G.S. l08A-25(b): 108A-54: 108A-55: 42 C.F.R. Part 

44'. Subpart C: 

Eff. December 1. 1984: 

Amended Eff. August 1. 1995: November 1. 1993: March 1. 

1988: January 1. 198': 

Temporan' .Amendment Eff .August ". 1998. 



Rule-making Agency: Social Services Commission 

Rule Citation: 10 NC.4C 49B .0608 

Effective Date: August 1. 1998 

Findings Reviewed and Approv ed by: Julian Mann. Ill 

Authority for the rule-making: S.L. 199'-443. Sec. 12.1' 

Reason for Proposed Action: Beginning October 1. 199' any 
AFDC or Work First cash assistance benefits recouped by the 
count}' that was determined fraudulent, intentional violation or 
erroneous shall be used to improve and enhance program 



320 



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AusustS, 1998 



13:3 



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integrity, therefore, 10 NCAC 49B .0608 needs to be temporarily 
amended to incorporate the disqualification process and the 
applicable sanctions when a recipient or former recipient has 
been found to have committed fraud or intentional program 
violation in order to receive cash benefits for which they were 
not eligible. 

Comment Procedures: Anyone wishing to comment should 
contact Sharnese Ransome, A PA Coordinator. Social Sen' ices 
Commission, NC Division of Social Services. 325 N. Salisbuiy 
St.. Raleigh, NC 27603, phone (919) 733-3055. 

CHAPTER 49 - AID TO FAMILIES WITH 
DEPENDENT CHILDREN (AFDC) 

SUBCHAPTER 49B - ELIGIBILITY 
DETERMINATION 

SECTION .0600 - PAYMENT PROCEDURES 

.0608 CLIENT FRAUD AND INTENTIONAL 
PROGRAM VIOLATIONS 

(a) County Responsibilities; Fraud Prevention. 

(1) The county department of social services shall be 
responsible for the development of an operational 
program for fraud prevention, detection and 
investigation. Fraud program organizational 
requirements must be established based on the number 
of (AFDC) (AFDC or Work First) recipients, the 
effectiveness of the fraud prevention program, the 
frequency of suspected fraud cases, and the resources 
available to the agency. 

(2) The county department must designate staff to be 
responsible for fraud activities. 

(3) The county shall strive to obtain all Social Security 
numbers and correctly complete them on computer 
input forms. 

(4) The recipient shall be notified no less frequently than 
at each eligibility review of his obligation to report 
within 10 days, all changes in income, resources, or 
other changes which may effect the amount of 
payment. Failure to do so within that time may 
constitute a willful withholding of such information, 
and permit the countv department to recover the 
overpayment. 

(b) County Department Responsibilities; Detection and 
Investigation: 

(1) The county department shall investigate any 
information which indicates that a recipient may be 
receiving AFDC or Work First to which he the 
recipient is not entitled. 

(2) In the investigation the staff designated for fraud 
shall: 

(A) verify that all responsibilities have been 
fulfilled as set forth in the rules and regulations 
governing the AFDC or Work First program: 

(B) determine whether frirther investigation should 
be undertaken to support the belief that fraud is 



suspected; 

(C) evaluate the evidence to substantiate fraud and 
the intent to defraud: 

(D) determine the amount of the erroneous 
payment. 

(3) When there is reason to suspect fraud, the county 
director must ensure that the agency has explained to 
the client his responsibilities for reporting changes in 
his circumstances to the agency. The director shall 
determine whether the agency should investigate 
further and shall present the case and fraud summary 
to the county board of social services for action unless 
the board has delegated this responsibility to him. 

(4) The fraud summary shall include: 

(A) identifying information; 

(B) a description of the fraudulent act; 

(C) evidence to substantiate fraud and the intent to 
defraud; 

(D) evidence to substantiate the amount of 
ineligible assistance received; 

(E) information concerning the client's 
competency, educational background, ability to 
know right from wrong, any statement 
volunteered by the client in response to the 
accusation and any other information which 
may help explain the client's current situation. 

(c) County Board's Responsibilities. 

(1) The county board of social services, or its designee, 
shall be responsible for determining whether there is 
a basis for the belief that misrepresentation may have 
been committed by a person. 

(2) The county board, or its designee, shall determine if 
the person: 

(A) willfully and knowingly misstated, provided 
incorrect or misleading information in response 
to either oral or written questions; or 

(B) willfully and knowingly tailed to report 
changes which might have affected the amount 
of payment; or 

(C) willfully and knowingly failed to report the 
receipt of benefits which he knew he was not 
entitled to receive. 

(3) There must be physical evidence to substantiate a 
determination that fraud was the reason for the 
overpayment. 

(4) If the board, or its designee, determines fraud is 
suspected, it shall instruct the agency to pursue one or 
more, of the following actions: 

(A) administrative recoupment which is defined as: 
(i) involuntary reduction of the AFDC or 
Work First Work First grant may be 
collected from all income and assets of 
the assistance unit. The assistance unit 
shall retain an amount not less than 90 
percent of the assistance payment 
received by a family of similar 
composition with no other income; or 
(ii) a voluntar) grant reduction. There is no 



NORTH CAROLINA REGISTER 



Au 



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1998 



321 



TEMPOHAR Y R ULES 



limitation on the amount of the 
reduction; 
(iii) voiuntan, recipient refund. There is no 
limitation on the amount of the refund: 
(B) administrative disqualification: 
(jj Hearing 

(1) A n administrative 

disqualification hearing will be 
initiated by the county 
department of social services 
when there is sufficient evidence 
to indicate that an individual has 
intentionally violated a program 
regulation \n order to receive 
cash assistance for which the 
individual is not eligible. The 
hearing will be held and any 
administrative action initiated 
within 90 davs of the date the 
individual js notified in writing 
has 



that the hearing 
scheduled 



been 



OD 



No hearing will be 

held when the amount of the 
overpayment is less than one 
hundred dollars (S 100.00). 
The county board of social 
services shall designate the 
county director or their impartial 
county employee to act as the 
hearings officer. Duties are to: 
provide written notification of 
the hearing date, time, and 
location to the client at least 30 
davs in advance of the date of the 
hearing. Written notification of 
the hearing shall include the 
client's right to have legal 
representation, a witness or 
\s itnesses. or vsaive the hearing, 
conduct the hearing to collect all 
evidence and testimony, 
render a vvritten decision to the 



client and DSS within 15 davs as 
to whether an intentional 
program violation has occurred. 
Written notification that the 
hearing decision will be mailed 



by Certified Mail 



Return 



Receipt Requested. 
The notice will inform the client 
of the right to further appeal to 
the state (or higher local 
authority ) and the procedures for 
such appeal. \Vhen an 

intentional program violation is 
found, the notification will 
inform the client of the length of 
the sanction and that client 



remains a part of the Work First 
case and subject to all program 
requirements. When no 

intentional program violation is 
found, the notification will 
inform the client that the 
overpayment will be collected 
pursuant to 1 NCAC 49B .0606. 



(ii) Sanctions: 



(I) The county department of social 

apply 



services 



shall 



disqualification 
follows: 12 



liii} 






to the (2) 



sanctions as 
months of 
ineligibility for the first offense: 
24 months for the second 
offense: and permanently 
disqualified for the third offense. 
(II) The sanction shall be applied by 
reducing the work first cash 
assistance payment by the 
disqualified person's share of the 
payment for the appropriate 
period of sanction. The 
disqualified person remains a 
part of the work first case and 
subject to all program 
requirements. 
Repayment: 

The county department of social 
services will follow procedures pursuant 
to Part (c)(4)(A) of this Rule in the 
collection of overpayments. 
civil court action: or 
criminal court action. 

(d) Board Decision: Agency Follow-up: 

(1) If the board, or its designee, suspects fraud, the 
deparmient's findings and actions shall be reported 
immediately' to the assistance payments section. The 
county director shall keep the county board and 
assistance payments section informed on all cases 
referred for court and repayment action. 
The county department of social services is 
responsible for supporting the local prosecutor by 
accomplishing necessary interviews in accordance 
vsith the prosecutor's requirements, recommending 
possible wimesses. providing necessary investigative 
reports, and taking other action deemed necessary by 
legal authorities. 

Regardless of what action is taken by- the board or the 
court, the county shall continue to work with the 
client and shall promptly notify the client of the action 
taken in his case. 

The county shall maintain records on the number of 
cases referred for investigation, the number of 
suspected fraud referrals, action taken to recover the 
overpay ment and amounts recovered. 

(e) In fraud cases, if a county fails to act promptly on 
indications of ineligibilits. federal and state financial 



(3) 



(4) 



I 



322 



SORTH CAROLINA REGISTER 



AusustJ, 1998 



13:3 



TEMPORAR Y R ULES 



participation shall not be available. 

HistorvNote: AuthohtvG.S. 108A-25: 108A-39: N3B-I53: 

S.L. 1997-443: 45 C.F.R. 233.20; 45 C.F.R. 235.110: 

Ejf. February 1. 1984: 

Amended Eff. June I. 1990: February' 1. 1986: 

Temporary AmendmenI Eff. August 1, 1998. 



TITLE 11 - DEPARTMENT OF INSURANCE 

Rule-making Agency: Department of Insurance 

Rule Citation: // NCAC 12.0840 - .0842 

Effective Date: .August 1, 1998 

Findings Reviewed by Julian Mann: Approved 

Authority for the rule-making: G.S. 58-2-40. 58-54-10. 58- 
54-15. 58-54-25 

Reason for Proposed Action: The Balanced Budget .Act of 
1997 became effective July 1. 1998, and requires state medicare 
supplement rules to adopt NAIC Medicare Supplement 
Insurance Minimum Standards Model Regulations. 

Comment Procedures: Written comments may be sent to 
Theresa Shackelford. NC Department of Insurance, PO Box 
26387, Raleigh, NC 27611. 

CHAPTER 12 - LIFE AND HEALTH DIVISION 

SECTION .0800 - MEDICARE SUPPLEMENT 
INSURANCE 

.0840 HIGH DEDUCTIBLE PLANS 

(a] In addition to the benefit plans specified in 1 1 NCAC 12 
.0836. the following high deductible benefit plans are authorized 
for use in this State. The provisions of 1 1 NCAC 12 .0836(a) 
through (d) apply to the plans in this Rule. 

(1) Standardized Medicare supplement benefit high 
deductible Plan F shall include only the following: 
100% of covered expenses following the payment of 
the annual high deductible Plan F deductible. The 
covered expenses include the core benefit as defined 
in 1 1 NCAC 12 .0835(2). p lus the Medicare Part A 
deductible, skilled nursing facility care, the Medicare 
Part B deductible. 1 00% of the Medicare Part B 
excess charges, and medically necessary emergency 
care in a foreign country as defined in 1 1 NCAC 12 
.0835(3)(a). (b). (c). (e). and (h) respectively. The 
annual high deductible Plan F deductible shall consist 
of out-of-pocket expenses, other than premiums, for 
services covered by the Medicare supplement Plan F 
policy, and shall be in addition to any other specific 
benefit deductibles. The annual high deductible Plan 



F deductible shall be one thousand five hundred 
dollars ($1500) for 1998 and 1999. and shall be based 
on the calendar year 
(2) Standardized Medicare supplement benefit high 
deductible Plan J shall consist of only the following: 
100% of covered expenses following the payment of 
the annual high deductible Plan J deductible. The 
covered expenses include the core benefit as defined 
in 1 1 NCAC 12 .0835(2). p lus the Medicare Part A 
deductible, skilled nursing facility care. Medicare Part 
B deductible. 1 00% of the Medicare Part B excess 
charges, extended outpatient prescription drug benefit, 
medically necessary emergency care jn a foreign 
country, preventive medical care benefit and at-home 
recovery benefit as defined in JJ. NCAC 12 
■0835(3)(a). (bltcLteLiglthltilaridijJ 
respectively. The annual high deductible Plan J 
deductible shall consist of out-of-pocket expenses, 
other than premiums, for services covered by the 
Medicare supplement Plan J policy, and shall be in 
addition to any other specific benefit deductibles. The 
annual deductible shall be one thousand five hundred 
dollars $1500 for 1998 and 1999. and shall be based 
on a calendar year 
(b) After 1999. the annual deductibles for the plans described 
in Subparagraphs (a)(1) and (a)(2) of this Rule shall be those 
established annually by the Secretary of the United States 
Department of Health and Human Services to reflect the change 
in the Consumer Price Index for all urban consumers for the 12- 
month period ending with August of the preceding year, and 
rounded to the nearest multiple of ten dollars ($10). 

History Note: Authority G.S. 58-2-40: 58-54-10: 58-54-15; 

58-54-25: 

Temporaiy Adoption Eff. August 1, 1998. 

.0841 CREDITABLE COVERAGE 

(a) As used in this Rule: 

(1) "Continuous period of creditable coverage" means the 
period during which an individual was covered by 
creditable coverage, if during the period of the 
coverage the individual had no breaks m coverage 
greater than 63 days. 

(2) "Creditable coverage" has the same meaning as in 
G.S. 58-68-30(c)(l). 

(b) If an applicant qualifies under 1 1 NCAC 12 .0837(a) and 
submits an application during the time period referenced in 1 1 
NCAC 12 .0837(a) and, as of the date of application, has had a 
continuous period of creditable coverage of at least six months. 
the issuer shall not exclude benefits based on a preexisting 
condition. 

tc} If the applicant qualifies under 1 1 NCAC 12 .0837(a) and 
submits an application during the time period referenced in 1 1 
NCAC 12 .0837(a) and, as of the date of application, has had a 
continuous period of creditable coverage that is less than six 
months, the issuer shall reduce the period of any preexisting 
condition exclusion by the aggregate of the period of creditable 
coverage applicable to the applicant as of the enrollment date. 



13:3 



fiWU^iitfiffi^^tai 



m 



TEMPORAR Y RULES 



The manner of the reduction under this Paragraph shall be a 
prescribed b> the Secretary of the United States Department of 
Health and Human Services. 
Id) 1 1 NCAC 12 .0837(b) does not apply to this Rule. 

History Note: Authorin- G.S. 58-2-40: 58-54-10: 58-54-15: 

58-54-25: 

Temporun' Adoption Eff. Aiisust L 1998. 

.0842 GUARANTEED ISSUE FOR ELIGIBLE 
PERSONS 

(a) As used in this Rule: 

( 1) "Bank.ruptc\" means when a Medicare^Choice 
organization that is not an issuer has filed, or has had 
filed against it^ a petition for declaration of 
bankruptcy and has ceased doing business in the state. 

(2) "Emplo\ee welfare benefit plan" means a plan, fund 
or program of employee benefits as defined m 29 
U.S.C. i}l002 (Employee Retirement Income Security 
Act). 

(3) "Insolvency" means when an issuer, licensed to 
transact the business of insurance jn thjs State, has 
had a final order of liquidation entered against it with 
a finding of insolvenc\ bv a court of competent 
jurisdiction in the issuer's state of domicile. 

(4) "Medicare-^Choice plan" means a plan of coverage for 
health benefits under Medicare Part C as defined in 
Section 1859. Title iV. Subtitle A. Chapter 1 of RL. 
105-33, and includes: 

(A) Coordinated care plans which provide health 
care services, including but not limited to 
health maintenance organization plans (with or 
without a point-of-service option), plans 
offered by provider-sponsored organizations. 
and preferred provider organization plans: 

(B) Medicare medical savings account plans 
coupled with a contribution into a 
Medicare+Choice medical savings account: 
and 

(C) Medicare-Choice private fee-for-sery ice plans. 
Eligible persons are those individuals described in 



Paragraph (c) of this Rule who apply to enroll under the poiic\ 
not later than 63 days after the date of tfie termination of 
enrollment described in Paragraph (c) of this Rule, and who 
submit e\ idence of the date of termination or disenrollment w ith 
the application for a Medicare supplement policy. 
With respect to eligible persons, an issuer shall not denN or 
condition the issuance or effectiveness of a Medicare 
supplement policy described in Paragraph (d) of this Rule that is 
offered and is available for issuance to new enroliees by the 
issuer, shall not discriminate in the pricing of such a Medicare 
supplement policx because of health status, claims experience, 
receipt of health care, or medical condition, and shall not impose 
an exclusion of benefits based on a preexisting condition under 
such a Medicare supplement policy. 

(c) An eligible person is an individual described in an\ of the 
following subparagraphs: 

( 1 ) The indi\idual is enrolled under an emplo\ee welfare 



benefit plan that provides health benefits that 
supplement the benefits under Medicare: and the plan 
terminates, or die plan ceases to provide all such 
supplemental health benefits to the individual: 
(2) The individual is enrolled with a Medicare+Choice 
organization under a Medicare+Choice plan under 



part C of Medicare, and there are circumstances 
permitting discontinuance of the individual's election 
of the plan under the first sentence of Section 



1851(e)(4) of the federal Social Security Act, which 
consists of the following: 

"Effective as of January f, 2002, an individual may 
discontinue an election of a Medicare-Choice plan 



im 



offered b\ a Medicare+Choice organization other than 
during an annual, coordinated election period [under 
Medicare] and make a new election under this section 

if 

(A) The organization's or plan's certification 
[under this part] has been terminated or the 
organization has terminated or otherwise 
discontinued providing the plan in thie area in 
which the individual resides: 
The individual is no longer eligible to elect the 
plan because of a change in tlie individual's 
place of residence or other change in 
circumstances specified bv the Secretary of the 
United States Department of Health and 
Human Services, but not including termination 
of the individual's enrollment on the basis 
described in Section 1851(g)(3)(B) of the 
federal Social Security' Act (where the 
individual has not paid premiums on a timely 
basis or has engaged rn disruptive behavior as 
specified in standards under Section 1856). or 
the plan is terminated for all individuals within 



{£1 



iDj 



a residence area: 

The individual demonstrates, in accordance 
w ith guidelines established bv the Secretary of 
the United States Department of Health and 
Human Services, that: 

(i) The organization offering the plan 
substantially violated a material 
provision of the organization's contract 
under this part in relation to the 
individual, including the failure to 
provide an enrol lee on a timeK' basis 
medicalK' necessary care for which 
benefits are available under the plan or 
the failure to provide such covered care 
in accordance with applicable quality 
standards: or 
(ii) The organization, or agent or other 
entity acting on tlie organization's 
behalf, material K misrepresented the 
plan's provisions rn marketing the plan 
to the individual: or 
The individual meets such other exceptional 
conditions as the Secretary of the United States 



m 



itt^Wii^H 



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Q} 



Department of Health and Human Services 
may provide." 
The individual is enrolled with: 



lA} 



fflj 



£C} 



(D} 
IE) 



An eligible organization under a contract under 

Section 1 876 (Medicare risk or cost): or 

A similar organization operating under 

demonstration project authority, effective for 

periods before April 1 . 1 999; or 

An organization under an agreement under 

Section 1 833(a)( 1 )( A) (health care prepayment 

plan); or 

An organization under a Medicare Select 

policy; and 

The enrollment ceases under the same 



circumstances 



that 



would permit 



{4} The 



discontinuance of an individual's election of 
coverage under the first sentence of Section 
1851(e)(4) of the federal Social Security Act as 
delineated in Subparagraph (2) of this 
Paragraph. 

individual js enrolled under a Medicare 
supplement policy and the enrollment ceases because: 

(A) Of the insolvency of the issuer or bankruptcy 
of the nonissuer organization or of other 
involuntary termination of coverage or 
enrollment under the policy; 

(B) The issuer of the policy substantially violated 
a material provision of the policy; or 

(C) The issuer, or an agent or other entity acting on 
the issuer's behalf, materially misrepresented 
the policy's provisions in marketing the policy 
to the individual; 

(5) The individual was enrolled under a Medicare 
supplement policy and terminates enrollment and 
subsequently enrolls, for the first time, with any 
Medicare+Choice organization under a 
Medicare+Choice plan under part C of Medicare, any 
eligible organization under a contract under Section 
1876 (Medicare risk or cost), any similar organization 
operating under demonstration project authority, an 
organization under an agreement under Section 
1833(a)(1)(A) (health care prepayment plan), or a 
Medicare Select policy; and the subsequent 
enrollment is terminated by the enrollee during any 
period within the first 12 months after the subsequent 
enrollment (during which the enrollee is permitted to 
terminate the subsequent enrollment under Section 
1851(e) of the federal Social Security Act); or 
The individual, upon first becoming eligible for 
benefits under p art A of Medicare at age 65. enrolls in 
a Medicare+Choice plan under part C of Medicare. 



m 



and disenrolls Irom the plan by not later than 12 
months after the effective date of enrollment, 
(d) The Medicare supplement policy to which eligible persons 
are entitled under: 

(JQ Subparagraphs (c)(1). (2). (3) and (4) of this Rule is 
a Medicare supplement policy which has a benefit 
package classified as Plan A^ B^ C^ or F offered by 



any issuer. 

(2) Subparagraph (c)(5) is the same Medicare supplement 
policy in which the individual was most recently 
previously enrolled, if available from the same issuer, 
or. if not so available, a policy described in 
Subparagraph (1) of this Paragraph. 

(3) Subparagraph (c)(6) shall include any Medicare 
supplement policy offered by any issuer. 

(e) At the time of an event described in Paragraph (c) of this 
Rule because of which an individual loses coverage or benefits 
due to the termination of a contract or agreement, policy, or plan, 
the organization that terminates the contract or agreement, the 
issuer terminating the policy, or tlie administrator of the plan 
being terminated, respectively, shall notify the individual of his 
or her rights under this Section, and of the obligations of issuers 
of Medicare supplement policies under Paragraph (b) of this 
Rule. Such notice shall be communicated contemporaneously 
with the notification of termination. At thie time of an event 
described in Paragraph (c) of this Rule because of which an 
individual ceases enrollment under a contract or agreement, 
policy, or plan, the organization that offers the contract or 
agreement, regardless of the basis for the cessation of 
enrollment, the issuer offering the policy, or the adminisfrator of 
the plan, respectively, shall notify the individual of liis or her 
rights under this Section, and of tlie obligations of issuers of 
Medicare supplement policies under Paragraph (b) of this Rule- 
Such notice shall be communicated within 10 working days of 
the issuer receiving notification of disenrollment. 

HistoiyNote: Authority G.S. 58-2-40; 58-54-10; 58-54-15; 

58-54-25; 

Temporary Adoption Eff. August 1. 1998. 



TITLE 15A - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 

Rule-making Agency: Commission for Health Services 

Rule Citation: 15A NCAC 13B . 1624 

Effective Date: July 8. 1998 

Findings Reviewed by Julian Mann: Approved 

Authority for the rule-making: G.S. 130A-290; 130A-294;SL 
1997-374 

Reason for Proposed Action: The rule amendment is proposed 
to satisfy the General Assembly's legislated request to the 
Commission (House Bill 1032) and was drafted by the Division 
of Waste Management (Solid Waste Section) staff and members 
of the North Carolina chapter of the Solid Waste Association of 
America. 

Comment Procedures: The Division of Waste Managetnent is 
in the process of drafting a temporary rule that would amend 



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current regulatory requirements for landfill liner design. 
Comments or requests for copies of the proposed draft rule may- 
be addressed to Joan Troy, Solid Waste Section. 401 Oherlin 
Road Suite 150. Raleigh. NC 27605. or phone (919) 733-0692. 
ext. 271, or email troyjbdwastenot.ehnrstate.nc.us. 

CHAPTER 13 - SOLID WASTE MANAGEMENT 

SUBCHAPTER 13B - SOLID WASTE MANAGEMENT 

SECTION .1600 - REQUIREMENTS FOR MUNICIPAL 
SOLID WASTE LANDFILL FACILITIES (MSWLFs) 

.1624 CONSTRUCTION REQUIREMENTS FOR 
MSWLF FACILITIES 

(a) This Rule establishes the performance standards and 
minimum criteria for designing and constructing a new MSWLF 
unit or lateral expansion of existing MSWLF units. Additional 
standards for the cap system are described in Rule .1627 of this 
Section. 

(b) New MSWLF units and lateral expansions shall comply 
with the following design and construction criteria: 

( 1 ) Base liner system description. The base liner system 
is constructed on the landfill subgrade and shall be 
designed to efficiently contain, collect and remove 
leachate generated by the MSWLF unit. At a 
minimum, the components of the liner system shall 
consist of the following. 

(A) A Base Liner. The base liner shall consist of 
one of the following designs. The design 
described in Subpart (b)( 1 )( A)(i) of this Rule is 
the standard composite liner. If a landfill 
owner or operator proposes to utilize one of the 
alternative composite liner designs described in 
Subparts (b)( 1 )( A)(ii) and (iii) of this Rule, the 
owner or operator shall demonstrate through a 
model acceptable to the Division that the 
proposed design will ensure that maximum 
concentration levels (MCLs) listed jn Table 1 
will not be exceeded in the uppermost aquifer 
at the relevant point of compliance as 
established in Rule .1631(a)(2) of this Section. 
For these two designs, the Division may waive 
the site-specific modeling requirement if it can 
be demonstrated that a previous site for which 
a model was approved had similar 
hydrogeologic characteristics, climatic factors 
and volume and ph> sical and chemical leachate 
characteristics. If an alternative liner design 
other than Subparts (b)( l)(A)(ii) and (iii) of 
this Rule is proposed, the Division shall require 
site-specific, two-phase modeling as described 
in Subpart (b)(i)(A)(iv) of this Rule. 
fA-)(i) A composite lin e r, liner utilizing a 
compacted cla\ liner (CCL). The 
composite liner is one liner which that 
consists of two components; a 
geomembrane liner installed above and 



im 



in direct and uniform contact with a 
compacted clay lin e r, liner with a 
minimum thickness of 24 inches (0.61 
m) and a permeability of ns more than 
1.0 X 10"^ cm/sec. The composite liner 
shall be designed and constructed in 
accordance with Subparagraphs (b)(8) 
and (^ LLOj of this Rule. 
A composite liner utilizing a 
geosynthetic clav liner (GCL). The 
composite liner is one liner that consists 
of three components: a geomembrane 
liner installed above and m uniform 
contact with a GCL overlying a 
compacted clay liner with a minimum 



thickness of 18 inches (0.46 m) and a 
permeability of no more than 1 .0 X 10'^ 
cm/sec. The composite liner shall be 
designed and constructed in accordance 
with Subparagraphs (8), (9), and ( 10) of 
this Rule. 

A composite liner utilizing two 

geomembrane liners. The composite 

liner consists of three components; two 

geomembrane liners each with an 

overlying leachate drainage system 

designed to reduce the maximum 

predicted head acting on the lower 

membrane liner to less than one inch. 

The lower membrane liner shall overlie 

a compacted clay liner with a minimum 

thickness of J_2 inches (0.31m) and a 

permeability of no more than 1.0 X 10' 

cm/sec. The composite liner system 

shall be designed and constructed in 

accordance with Subparagraphs (b)(8) 

and (10) of this Rule. 

An alternative base liner. An alternative 

base liner system may be approved by 

the Division if the owner or operator 

demonstrates through a two-phase 

modeling approach acceptable to the 

Division that the alternative liner design 

meets the following criteria: 

(I) the rate of leakage through the 

alternative liner system will be 

less than or equal to the 

composite liner system defmed in 

Subpart (b)( 1 )(A)(i) of this Rule; 

and 

(11) the design will ensure that 

concentration values listed in 

Table 1 will not be exceeded in 

the uppermost aquifer at the 

relevant point of compliance as 

established in Rule .1631(a)(2) 

of this Section. 

(B) A leachate collection system (LCS). The LCS 



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is constructed directly above the composit e 
base liner and shall be designed to effectively 
collect and remove leachate from the MSWLF 
unit. The secondary function of the LCS is to 
establish a zone of protection between the 
composit e base liner and the waste. TTie LCS 
shall be designed and constructed in 
accordance with Subparagraphs (b)(2), (4#), 
(11). and (12). (12) and (13) of this Rule. 
(2) Leachate collection system d es ign, design and 
operation. 

(A) The leachate collection system shall be 
hydraulically designed to remove leachate from 
the landfill and ensure that the leachate head on 
the composite liner does not exceed one foot. 
A means of quantitatively assessing the 
performance of the leachate collection system 
und e r uniform condition s must be provided in 
the engineering plan. The performance 
analysis must evaluate the flow capacities of 
the pipe drainage network necessarv to convey 
leachate to the storage facility or off-site 
transport location. The engineering evaluation 
shall incorporate the following criteria: 

(i) At a minimum, th e imping e m e nt rat e on 
th e drainag e lay e r shall b e e qual to th e 
peak — monthly — pr e cipitation — rate — te 
e valuat e th e r e lationship b e tw ee n bas e 
slop e , drainag e lay e r p e rm e ability ' , and 
coll e ctor pipe spacing. 
(i+)£i} At a minimum, the geometry of the 
landfill and the leachate collection 
system shall be designed to control and 
contain the volume of leachate 
generated b\ the 24-hour. 25-year storm. 
fwKii) The performance analysis shall evaluate 
the leachate collection system for the 
flow capacities during conditions when 
the maximum impingement rate occurs 
on the LCS. Coll e ction pip e The LCS 
flow capacity shall be s iz e d designed to 
drain th e critical volum e of l e achat e 
reduce the head on the liner system 
generated by the 24-hour. 25-year storm 
to less than one foot within 72 hours 
after the storm event, in a sp e cifi e d 
period of tim e . 

(B) The leachate collection system shall be 
designed to provide a zone of protection at 
least 24 inches thick separating the composite 
liner from landfilling activiti e s, activities, or 
shall be subject to approval from the Division 
upon a demonstration of equivalent protection 
for the liner system. 

(C) The leachate collection system shall be 
designed to resist includ e a drainag e lay e r, a 
pipe — n e twork — wrth — cl e an outs. — and — the 
n e cessary filters d e sign e d to pr e vent physical 



m 



clogging and promote leachate collection and 

removal from the landfill. 

The leachate collection system shall be 



operated to remove leachate from the landfill in 
such a way as to ensure that the leachate head 
on the composite liner does not exceed one 
foot under normal operating conditions. 

(3) Horizontal separation requirements. 

(A) Property line buffer New MSWLF units at a 
new facility shall establish a minimum 300-foot 
buffer between the MSWLF unit and all 
property lines. 

(B) Private residences and wells. All MSWLF 
units at a new facility shall establish a 
minimum 500-foot buffer between the 
MSWLF unit and existing private residences 
and wells. 

(C) Surface waters. All MSWLF units at new 
facilities shall establish a minimum 50-foot 
buffer between the MSWLF unit and any 
stream, river, or lake, unless the owner or 
operator can demonstrate: 

(i) To the Division that the alternative 
management of the water and any 
discharge will adequately protect the 
public health and environment: and 

(ii) That the construction activities will 
conform to the requirements of Sections 
404 and 401 of the Clean Water Act. 

(D) Existing landfill units. An adequate buffer 
distance shall be established between a new 
MSWLF unit and any existing landfill units to 
establish a ground-water monitoring system as 
set forth in Rule .1631 of this Section. 

(E) Existing facility buffers. At a minimum, a 
lateral expansion or new MSWLF unit at an 
existing facility shall conform to the 
requirements of the effective permit. 

(4) Vertical separation requirements. A MSWLF unit 
shall be constructed so that the post settlement 
bottom elevation of the base liner system is a 
minimum of four feet above the seasonal high ground- 
water table and bedrock. The nature of the materials 
establishing this separation shall be subject to 
Division approval. 

(5) Survey control. One permanent benchmark of known 
elevation measured from a U.S. Geological Survey 
benchmark shall be established and maintained for 
each 50 acres of developed landfill, or part thereof at 
the landfill facility. This benchmark shall be the 
reference point for establishing vertical elevation 
control. 

(6) Location coordinates. The North Carolina State Plane 
(NCSP) coordinates shall be established and one of its 
points shall be the benchmark of known NCSP 
coordinates. 

(7) Landfill subgrade. The landfill subgrade is the in-situ 
soil layer(s). constructed embankments, and select fill 



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isus^. 



327 



TEMPORARY RULES 



providing the foundation for construction of the unit. 
A foundation analysis shall be performed to determine 
the structural integrit\ of the subgrade to support the 
loads and stresses imposed b\ the weight of the 
landfill and to support overlying facilitv' components 
and maintain their integrity of the components. 
Minimum post-settlement slope for the subgrade shall 
be two percent. Safetv' factors shall be adequateK 
specified for facilities located in a Seismic Impact 
Zones. 

(A) Materials required. The landfill subgrade shall 
be adequately free of organic material and 
consist of in-situ soils or a select fill if 
approved by the Division. 

(B) Construction requirements. 

(i) The landfill subgrade shall be graded in 
accordance with the Division approved 
plans and specifications. 

(ii) The owner or operator of the MSWLF 
units may be required b%' the permit to 
notify the Division's hydrogeologist and 
inspect the subgrade when excavation is 
completed or if bedrock or other 
unpredicted subsurface conditions are 
encountered during excavation. 

(C) Certification requirements. At a minimum, the 
subgrade surface shall be inspected in 
accordance with the following requirements: 

(i) Before beginning construction of the 

base liner s\stem. the project engineer 

shall visually inspect the exposed 

surface to evaluate the suitability of the 

subgrade and document that the surface 

is properly prepared and that the 

elevations are consistent with the 

Division approved engineering plans: 

(ii) TTie subgrade shall be proof-rolled using 

procedures and equipment specified b\ 

the design or project engineer: and 

(iii) The subgrade shall be tested for density 

and moisture content at a minimum 

frequenc\ specified in the Division 

approved plans. 

(8) Compacted cla\ liners. Compacted cla\' liners are lov\ 

permeability barriers designed to control fluid 

migration in a cap liner s>stem or base liner s>stem. 

(A) Materials required. The soil materials used in 

constructing a compacted clay liner ma> 

consist of on-site or off-site sources, or a 

combination of sources: sources ma\ possess 

adequate native properties or may require 

bentonite conditioning to meet the permeability 

requirement. The soil material shall be free of 

particles greater than three inches in any 

dimension. 

<4^ For th e bas e lin e r syst e m, th e compact e d 
cla\ lin e r shall b e construct e d with a 
minimum thickness of 2 1 inches (0.61 



m) and a p e rm e ability of no mor e than 1 
X-fO" cm's e c. 
(h) For th e cap syst e m^ the compact e d clay 
iineF — shaH — be — constructed — wrth — a 
minimum thiclcn e ss of 1 8 inch e s (0.16 
m) and a p e rmeability of no mor e than 1 
X-14"^ cm/s e c. 

(B) Construction requirements. Construction 
methods for the compacted clay liner shall be 
based upon the type and quality of the borrow 
source and shall be verified in the field by 
constructing test pad(s). The project engineer 
shall ensure that the compacted clay liner 
installation conforms with the Division 
approved plans including the following 
minimum requirements: 

(i) A test pad shall be constructed prior to 
beginning installation of the compacted 
clay liner and whenever there is a 
significant change in soil material 
properties. The area and equipment. 
liner thickness, and subgrade slope and 
conditions shall be representative of full 
scale construction. Acceptance and 
rejection criteria shall be verified for the 
tests specified in accordance with Part 
(C) of this Subparagraph. For each lift, 
a minimum of three test locations shall 
be established for testing moisture 
content, density, and a composite 
sample for recompacted lab 
permeability. At least one shelby tube 
sample for lab permeability testing, or 
another in situ test approved by the 
Division, shall be obtained per lift. 

(ii) Soil conditioning, placement, and 
compaction shall be maintained within 
the range identified in the moisture- 
density -permeability relation de\eloped 
in accordance with Subpart (C) of this 
Subparagraph. 

(iii) The final compacted thickness of each 
lift shall be a maximum of six inches. 

(iv) Prior to placement of successive lifts, 
the surface of the lift in place shall be 
scarified or otherwise conditioned to 
eliminate lift interfaces, 
(v) The final lift shall be adequately 
protected from environmental 
degradation. 

(C) Certification requirements. The project 
engineer shall include in the construction 
quality assurance report a discussion of all 
quality assurance and quality control testing 
required in this Subparagraph. The testing 
procedures and protocols shall be submitted in 
accordance with Rule .1621 of this Section and 
approved b> the Division. The results of all 



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testing shall be included in the construction 

quality assurance report including 

documentation of any failed test results, 

descriptions of the procedures used to correct 

the improperly installed material, and 

statements of all retesting performed in 
accordance with the Division approved plans 

including the following requirements: 
(i) At a minimum, the quality control 
testing for accepting materials prior to 
and during construction of a compacted 
clay liner shall include; particle size 
distribution analysis, Atterberg limits, 
triaxial cell laboratory permeability, 
moisture content, percent bentonite 
admixed with soil, and the moisture- 
density-permeability relation. The 
project engineer shall certify that the 
materials used in construction were 
tested according to the Division 
approved plans, 
(ii) At a minimum, the quality assurance 
testing for evaluating each lift of the 
compacted clay liner shall include: 
moisture content and density, and 
permeability testing. For each location 
the moisture content and densitv shall be 
compared to the appropriate moisture- 
density-permeability relation. The 
project engineer shall certify that the 
liner was constructed using the methods 
and acceptance criteria consistent with 
test pad construction and tested 
according to the Division approved 
plans, 
(iii) Any tests resulting in the penetration of 
the compacted clay liner shall be 
repaired using bentonite or as approved 
by the Division. 
(9) Geosynthetic Clay liners. GeosvTithetic clav liners are 
geosvTithetic hydraulic barriers manufactured in sheets 
and installed b\ field seaming techniques. 
(A) Materials required. Geosvnthetic claN liners 
shall consist of natural sodium bentonite clay 
or equivalent, encapsulated between two 
geotextiles or adhered to a geomembrane. The 
liner material and any seaming materials shall 
have chemical and physical resistance not 
adversely affected by environmental exposure, 
waste placement, leachate generation and 
subgrade moisture composition. Accessory 
bentonite. used for seaming, repairs and 
penetration seaming shall be made from the 
same sodium bentonite as used in the 
geosynthetic clay liner or as recommended by 
the manufacturer The type of geosvnthetic 
clay liner shall be approved by the Division 
according to the criteria set forth in this Part. 



m 



lii} 



(BJ 



(Q 



Reinforced geosynthetic clay liners shall 
be used on all slopes greater than 
10H:1V. 

The geosynthetic clay liner material 
shall have a demonstrated hydraulic 
conductivity of not more than 5.0 X 10 '' 
cm/sec under the anticipated confining 
pressure- 
Design and Construction requirements. The 
design engineer shall ensure that the design of 
the geosvnthetic clay liner installation 
conforms to the requirements of the 
manufacturer's recommendations and the 
Division approved plans. The Division 
approved plans shall provide for and include 
the following provisions: 
(i) The surface of the supporting soil upon 
which the geosynthetic clay liner will be 
installed shall be reasonably free of 
stones, organic matter, protrusions, 
loose soil, and any abrupt changes in 
grade that could damage the 
geosynthetic clay liner; 
Materials placed on tog of the GCL 
shall be placed according to Division 
approved plans. Equipment used to 
install additional geosynthetics shall be 
specified by the design engineer and as 
recommended by the manufacturer. A 
minimum of J_2 inches of separation 
between the application equipment and 
the geosynthetic clay liner shall be 



(iii) 



(ii) 



provided when applying soil materials; 
Materials which become prematurely 
hydrated shall be removed, repaired, or 
replaced, as specified by the project 
engineer and the Division approved 
plans . 

Field seaming preparation and methods, 
general orientation criteria, and 
restrictive weather conditions; 
Anchor trench design; 
Critical tensile forces and slope stability, 
including seismic design; 
Protection fi"om environmental damage: 
and 

Physical protection fi'om the materials 
installed directly above the geosynthetic 
clay liner. 
Certification requirements. 

(ij The project engineer shall ensure that 
the geosynthetic clay installation 
conforms to the requirements of the 
manufacturer's recommendations and 
the Division approved plans. 

(ii) The project engineer shall include in the 
construction quality assurance report a 
discussion of quality assurance and 



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(vii) 
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quality control testing to document that 
material is placed according to the 
approved plans, 
(iii) The project engineer shall include in the 
construction quality assurance report a 
discussion ot' the approved data 
resulting itom the qualits assurance and 
quality control testing required in this 
Subparagraph, 
(iv) The testing procedures and protocols for 
field installation shall be submitted jn 
accordance with Rule .1621 of this 
Section and approved b\ the Division, 
(v) The results of ah testing shall be 
included in the construction quality 
assurance report. including 

documentation of an> failed test results, 
descriptions of the procedures used to 
correct the improperK installed material. 
and statements of aH retesting 
performed in accordance with the 
Division approved plans including the 
following: 

(I) Quality' control testing of the raw 

materials and manufactured 

product; 

(II) Field and independent laboratory' 

destructive testing of 

geos\nthetic cla\ liner samples; 

(III) Before beginning installation of 

the geosynthetic clay liner, the 

project engineer shall visually 

inspect the exposed surface to 

evaluate the suitability of the 

subgrade and document that the 

surface is properK prepared and 

that the elevations are consistent 

with the Division approved 

engineering plans. 

(WIO) Geomembrane liners. Geomembrane liners are 

geosynthetic hydraulic barriers manufactured in sheets 

and installed b\ field seaming techniques. 

(A) Materials required. Th e g e om e mbran e lin e r 

mat e rial shall hav e a d e mon s trat e d wat e r vapor 

transmission rate of not more than 0.03 gm ' Ur - 

4ay7 The liner material and an\ seaming 

materials shall have chemical and physical 

resistance not adverseK affected b\ 

environmental exposure, waste placement and 

leachate generation, The t)pe of geomembrane 

shall be approved b\ the Division according to 

the criteria set forth in this Part. 

(i) High densitv' pol\eth\lene 

geomembrane liners shall have a 

minimum thickness of 60 mils. 

(ii) The minimum thickness of an> 

geomembrane approved by the Division 

shall be greater than 30 mils. 



(ii) 



(iii) 
(iv) 

(V) 

(vi) 



<-W(ll) 



(B) Construction requirements. The project 
engineer shall ensure that the geomembrane 
installation conforms to the requirements of the 
manufacturer's recommendations and the 
Division approved plans including the 
following: 

(i) The surface of the supporting soil upon 
which the geomembrane will be 
installed shall be reasonably free of 
stones, organic matter, protrusions, 
loose soil, and any abrupt changes in 
grade that could damage the 
geomembrane: 

Field seaming preparation and methods, 
general orientation criteria, and 
restrictive weather conditions; 
Anchor trench design; 
Critical tensile forces and slope 
stability; 

Protection from environmental damage; 
and 

Physical protection from the materials 
installed directly above the 
geomembrane. 

(C) Certification requirements. The project 
engineer shall include in the construction 
qualit} assurance report a discussion of the 
approved data resulting from the quality 
assurance and quality control testing required 
in this Subparagraph. The testing procedures 
and protocols for field installation shall be 
submitted in accordance with Rule .1621 of 
this Section and approved by the Division. TTie 
results of all testing shall be included in the 
construction quality assurance report including 
documentation of any failed test results, 
descriptions of the procedures used to correct 
the improperly installed material, and 
statements of all retesting performed in 
accordance with the Division approved plans 
including the following: 

(i) Quality control testing of the raw 

materials and manufactured product; 

(ii) At a minimum, test seams shall be made 

upon each start of work for each 

seaming crew, upon ever, four hours of 

continuous seaming, every time seaming 

equipment is changed or if significant 

changes in geomembrane temperature 

and weather conditions are observed; 

(iii) Nondestructive testing of all seams; and 

(iv) Field and independent laboratory 

destructive testing of seam samples. 

Leachate collection pipes. A leachate collection pipe 

netyyork shall be a component of the leachate 

collection system and shall be hjdraulicalK designed 

to convey leachate from the MSWLF unit tc an 

appropriately sized leachate storage or treatment 



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facility or a point of off-site transport. Leachate 
collection piping shall comply with the following: 

(A) Materials required. 

(i) The leachate collection piping shall have 
a minimum nominal diameter of six 
inches. 

(ii) The chemical properties of the pipe and 
any materials used in installation shall 
not be adversely affected by waste 
placement or leachate generated by the 
landfill. 

(iii) The physical properties of the pipe shall 
provide adequate structural strength to 
support the maximum static and 
dynamic loads and stresses imposed by 
the overlying materials and any 
equipment used in construction and 
operation of the landfill. Specifications 
for the pipe shall be submitted in the 
engineering report. 

(B) Construction requirements. 

(i) Leachate collection piping shall be 
installed according to the Division 
approved plan. 

(ii) The location and grade of the piping 
network shall provide access for 
periodic cleaning. 

(iii) The bedding material for the leachate 
collection pipe shall consist of a coarse 
aggregate installed in direct contact with 
the pipe. The aggregate shall be 
chemically compatible with the leachate 
generated and shall be placed to provide 
adequate support to the pipe. The 
bedding material for main collector lines 
shall be extended to and in direct 
contact with the waste layer or a graded 
soil or granular filter. 

(C) Certification requirements. The project 
engineer shall include in the construction 
quality assurance report a discussion of the 
quality assurance and quality control testing to 
ensure that the material is placed according to 
the approved plans. The testing procedures 
and protocols for field installation shall be 
submitted in accordance with Rule .1621 of 
this Section and approved by the Division. The 
results of all testing shall be included in the 
construction quality assurance report including 
docum e ntion documentation of any failed test 
results, descriptions of the procedures used to 
correct the improperly installed material, and 
statements of all retesting performed in 
accordance the Division approved plans 
including the following: 

(i) All leachate piping installed from the 
MSWLF unit to the leachate storage or 
treatment facility shall be watertight. 



{\mm 



(ii) The seal where the piping system 
penetrates the geomembrane shall be 
inspected and non-destructively tested 
for leakage. 
Drainage layers. Any soil, granular, or geosynthetic 
drainage nets used in the leachate collection system 
shall conform to the following requirements: 
(A) Materials required. 

(i) The chemical properties of the drainage 
layer materials shall not be adversely 
affected by waste placement or leachate 
generated by the landfill, 
(ii) The physical and hydraulic properties of 
the drainage layer materials shall 
promote lateral drainage of leachate 
through a zone of relatively high 
permeability or transmissivity under the 
predicted loads imposed by overlying 
materials. 
Construction requirements, 
(i) 



(B) 



{^im 



The drainage layer materials shall be 

placed according to the Division 

approved plans and in a manner which 

prevents equipment from working 

directly on the geomembrane. 

(ii) The drainage layer materials shall be 

stable on the slopes specified on the 

engineering drawings. 

(C) Certification requirements. The project 

engineer shall include in the construction 

quality assurance report a discussion of the 

quality assurance and quality control testing to 

ensure that the drainage layer material is placed 

according to the approved plans. The testing 

procedures and protocols for field installation 

shall be submitted in accordance with of Rule 

.1621 of this Section and approved by the 

Division. The results of all testing shall be 

included in the construction quality assurance 

report including documentation of any failed 

test results, descriptions of the procedures used 

to correct the improperly installed material, and 

statements of all retesting performed in 

accordance with the Division approved plans. 

Filter layer criteria. All filter collection layers used in 

the leachate collection system shall be designed to 

prevent the migration of fine soil particles into a 

courser grained material, and permit water or gases to 

freely enter a drainage medium (pipe or drainage 

layer) without clogging. 

(A) Materials required. 

(i) Graded cohesionless soil filters. The 
granular soil material used as a filter 
shall have no more than five percent by 
weight passing the No. 200 sieve and no 
soil particles larger than three inches in 
any dimension, 
(ii) Geosynthetic filters. Geosvnthetic filter 



13:3 



NORTH CAROLINA REGISTER 



Aueust3.1998 



331 



TEMPOKAR Y RULES 



materials shall demonstrate adequate 
permeabilit\ and soil particle retention, 
and chemical and phssicai resistance 
which is not ad\'ersel\ aftected b\ waste 
placement, any overlying material or 
leachate generated b\ the landtlll. 

(B) Construction requirements. All filter layers 
shall be installed in accordance with the 
approved engineering plan and specifications. 
Geos\nthetic filter materials shall not be 
wrapped directly around leachate collection 
piping. 

(C) Certification requirements. The project 
engineer shall include in the construction 
quality assurance report a discussion of the 
quality assurance and quality control testing to 
ensure that the filter layer material is placed 
according to the approved plans. The testing 
procedures and protocols for field installation 
shall be submitted in accordance with Rule 
.1621 of this Section and approved by the 
Division. The results of all testing shall be 
included in the construction quality assurance 
report including documentation of an) failed 
test results, descriptions of the procedures used 
to correct the improperK installed material, and 
statements of all retesting performed in 
accordance with the Division approved plans. 

f444 (14) Special engineering structures. Engineering structures 
incorporated in the design and necessary to comply 
with the requirements of this Section shall be 
specified in the engineering plan. Material, 
construction, and certification requirements necessary 
to ensure that the structure is constructed according to 
the design and acceptable engineering practices shall 
be included in the Division approved plan. 

{4-14 (15) Sedimentation and erosion control. Adequate 
structures and measures shall be designed and 
maintained to manage the run-off generated b\ the 24- 
hour. 25-year storm event, and conform to the 
requirements of the Sedimentation Pollution Control 
Law(15ANCAC4). 



f44- H 16) Construction quality assurance (CQA) report. 

(A) A CQA report shall be submitted: 

(i) After completing landfill construction in 
order to qualify the constructed 
MSWLF unit for a permit to operate; 

(ii) After completing construction of the cap 
system in accordance with the 
requirements of Rule .1629 of this 
Section; and 

(iii) According to the reporting schedule 
developed in accordance with Rule 
.1621 of this Section. 

(B) The CQA report shall include, at a minimum, 
the information prepared in accordance with 
the requirements of Rule .1621 of this Section 
containing results of all construction quality 
assurance and construction quality control 
testing required in this Rule including 
documentation of any failed test results, 
descriptions of procedures used to correct the 
improperly installed material and results of all 
retesting performed. The CQA report shall 
contain as-built drawings noting any deviation 
from the approved engineering plans and shall 
also contain a comprehensive narrative 
including but not limited to daih reports from 
the project engineer and a series of color 
photographs of major project features. 

(C) The CQA report shall bear the seal of the 
project engineer and a certification that 
construction was completed in accordance 
with: 

(i) The CQA plan: 
(ii) The conditions of the permit to 

construct; 
(iii) The requirements of this Rule; and 
(iv) Acceptable engineering practices. 

(D) The Division shall review the CQA report 
uithin 30 davs of a complete submittal to 
ensure that the report meets the requirements of 
this Subparagraph. 



Table 1 



CHEMICAL 


MCL(mg/l 


Arsenic 


0.05 


Barium 


1.0 


Benzene 


0.005 


Cadmium 


0.01 


Carbon Tetrachloride 


0.005 


Chromium (he\a\alent) 


0.05 



332 



.\ORTH CAROLINA REGISTER 



Ausust 3, 



1998 



13:3 



TEMPORAR Y R ULES 



2,4-Dichlorophenoxy acetic acid 


0.1 


1 ,4-Dichlorobenzene 


0.075 


1,2-Dichloroethane 


0.005 


1 , 1 -Dichloroethylene 


0.007 


Endrin 


0.0002 


Fluoride 


4 


Lindane 


0.004 


Lead 


0.05 


Mercury 


0.002 


Methoxychlor 


0.1 


Nitrate 


10.0 


Selenium 


0.01 


Silver 


0.05 


Toxaphene 


0.005 


L 1 , 1 -Trichloromethane 


0.2 


Trichloroethylene 


0.005 


2.4,5-Trichlorophenoxy acetic acid 


0.01 


Vinyl Chloride 


0.002 



History Note: Authority' G.S. J 30.4-294: 
Eff. October 9, 1993: 
Temporary Amendment Eff. July 8, 1998. 



'3:3 



mmsmmsu^^^^m 



m 



APPROVED RULES 



This Section includes the Register Xotice citation to Rules approved by the Rules Review- Commission (RRC) at its meeting of 
June 18. 1998 pursuant to G.S. 150B-2I. 1 ""(aid I and reported to the Joint Legislative Administrative Procedure Ch-ersight 
Committee pursuant to G.S. 150B-21. 16. The full text of rules are published below when the rules have been approved bv RRC 
in a form different from that originally noticed in the Register or when no notice was required to be published in the Register 
The rules published infill text are identified by an * in the listing of approved rules. Statutory Reference: G.S. 150B-21. 1 ~. 

These rules unless othenvise noted, will become effective on the 31st legislative day of the 1998 Short Session of the General 
.Assembly or a later date if specified by the agency unless a bill is introduced before the 31st legislative day that specifically 
disapproves the rule. If a bill to disapprove a rule is not ratified, the rule will become effective either on the day the bill receives 
an unfavorable final action or the den' the General .Assembly adjourns. Statutory reference: G.S. 1 50B-21 .3. 



APPROVED RULE CITATION 



REGISTER CITATION TO THE 
NOTICE OF TEXT 



10 


NCAC 


47B 


.0102* 


12 


NCAC 


07D 


.0204* 


12 


NCAC 


07D 


.1106* 


12 


NCAC 


lOB 


.0206* 


17 


NCAC 


06B 


.3204 


17 


NCAC 


09L 


.0105 


21 


NCAC 


14L 


.0403 


26 


NCAC 


01 


.0102* 



12:11 NCR 939 
12:08 NCR 622 
12:08 NCR 622 
12:18NCR 1703 
12:17NCR 1610 
12:17NCR 1610 
12:11 NCR 925 
not required. G.S. 



1508-21. 5(b)(1) 



TITLE 10 - DEPARTMENT OF HEALTH AND 
HUMAN SERVICES 

CHAPTER 47 - ST\TE/COUNTY SPECIAL 
ASSISTANCE FOR ADULTS 

SUBCHAPTER 47B - ELIGIBILITY 
DETERMINATION 

SECTION .0100 - APPLICATION PROCESS 

.0102 INITIAL INTERVIEW 

The applicant shall be allowed to ha\e an> person(s) of his 
choice participate in the inter\ iew. The eligibility, specialist shall 
explain the eligibility, requirements. The applicant shall be 
informed of the following: 

(1) He must pro\ide the name of collaterals, such as 
landlords. emplo\ ers. and others u ith know ledge of 
his situation. 

(2) It is the county's responsibility, to use collateral 
sources to substantiate or \ erit\ information necessar. 
to establish eligibilit). except that, for an applicant 
mo\ ing to North Carolina to join a close relative 
(parent, grandparent, brother, sister, spouse, or child), 
the close relati\e must pro\ide \erit1cation of his or 
her state residencN to the count> department of social 
services. Collateral sources of information include 
knowledgeable indi\iduals. business organizations, 
public records, and documentary e\idence. If the 
applicant does not w ish necessarv collateral contacts 
to be made, he can withdraw the application. If he 
denies permission to contact necessarv collaterals, the 
application shall be rejected due to failure to 



cooperate in establishing eligibilit>. 

(3) A worker will visit his home or the domiciliarv care 
facilitv. The purpose of the visit is to veriiv eligibilit> 
requirements. 

(4) The applicant has the right to: 

(a) Recei\e assistance if found eligible: 

(b) Be protected against discrimination on the 
ground of race, creed, or national origin b\ 
Title VI of the Civil Rights Act of 1964: He 
ma\ appeal such discrimination; 

(c) Spend his assistance pa\Tnent as he wishes, but 
it must be in his best interest and that of his 
family: A substitute pavee ma> be appointed 
for those individuals who cannot manage the 
payment: 

(d) Receive his monthK check in ad\ance until the 
pa\ment is terminated b\ appropriate action: 

(e) Have an\ information gi\en to the agenc\ kept 
in confidence: 

(f) Appeal, if his assistance will be denied, 
changed or terminated: his pa\ment is 
incorrect based on the counr\"s interpretation 
of state regulations: or his request for a change 
in the amount of assistance was deia\ed 
be\ond 30 da>s or rejected; 

(g) ReappK at an\ time, if found ineligible: 

(h) Withdraw from the assistance program at an\ 
time. 

(5) The applicant's responsibilities. He must: 

(a) Provide the county department, state and 
federal officials the necessar\ sources from 
which the county department can locate and 
obtain information needed to determine 



tt 



fSs 



m^^mmik 



Ausust 3. 1998 



m 



13:3 



APPROVED RULES 



eligibility. 

(b) Report to the county department of social 
services any change in situation that may affect 
eligibility for a check within five days after it 
happens. The meaning of fraud shall be 
explained. The applicant shall be informed 
that he may be suspected of fraud if he fails to 
report a change in situation and that in such 
situations, he may have to repay assistance 
received in error and that he may also be tried 
by the courts for fraud. 

(c) Informthecountydepartmentof social services 
of any person or organization against whom he 
has a right to recovery. When he accepts 
medical assistance (included with all SA except 
CD), the applicant assigns his rights to third 
party insurance benefits to the state. He shall 
be informed that it is a misdemeanor to fail to 
disclose the identity of any person or 
organization against whom he has a right to 
recovery. 

(d) Immediately report to the county department 
the receipt of a check which he knows to be 
erroneous, such as two checks for the same 
month, or a check in the wrong amount. If he 
does not report such payments, he may be 
required to repay any overpayment. 

History Note: Authority G.S. I08A-4I(b): 143B-153: 
Eff. January 1, 1983: 

Temporary Amendment Eff. October 28. 1997: 
Amended Eff. April 1. 1999. 



TITLE 12 - DEPARTMENT OF JUSTICE 

CHAPTER 7 - PRIVATE PROTECTIVE SERVICES 

SUBCHAPTER 7D - PRIVATE PROTECTIVE 
SERVICES BOARD 

SECTION .0200 - LICENSES: TRAINEE PERMITS 



license; or 
(2) gained when employed by a company contracting 
private protective services to another person, firm, 
association or corporation while the company is not in 
possession of a valid private protective services 
license. 
The Board may consider formal classroom training which is 
directly related to the private protective services industry. The 
Board may grant one half hour of credit for each hour of formal 
training, but shall grant no more than two hundred hours. 
Paragraph (c) of this Rule is to be considered in addition to any 
other formal training credits. No credit shall be given for formal 
training required pursuant to these Rules. 

History Note: Authority' G.S. 74C-5: 74C-8: 

Eff. June 1, 1984: 

ARRC Objection October 19, 1988: 

Amended EfT. April 1. 1999: February 1, 1996; March 1, 1989; 

December 1. 1985. 

SECTION .1100 - TRAINING AND SUPERVISION 
FOR PRIVATE INVESTIGATOR ASSOCIATES 

.1106 TIME LIMITS ON EXPERIENCE 

(a) The Board will consider any practical experience gained 
within 10 years of the application date. The Board shall not 
consider experience claimed by the applicant if: 

( 1 ) gained by contracting private protective services to 
another person, firm, association, or corporation while 
not in possession of a valid private protective services 
license; or 

(2) gained when employed by a company contracting 
private protective services to another person, firm, 
association, or corporation while the company is not 
in possession of a valid private protective services 
license 

(b) The Board will consider any educational experience 
referred to in 1 2 NCAC 7D . 1 1 05. 

History Note: Statutory Authority G.S. 74C-5(2): 
Eff. July 1. 1994: 
Amended Eff. .April 1. 1999. 



.0204 DETERMINATION OF EXPERIENCE 

(a) Experience requirements shall be determined in the 
following manner: 

(1) one year experience = 1,000 hours; 

(2) two years experience = 2,000 hours; 

(3) three years experience = 3,000 hours. 

(b) Applicants must be prepared to make available upon 
request written documentation to verify experience. 

(c) When applying for a license, registration or trainee permit, 
the board shall not consider any experience claimed by the 
applicant if: 

(1) gained by contracting private protective services to 
another person, firm, association or corporation while 
not in possession of a valid private protective services 



CHAPTER 10 - N.C. SHERIFFS' EDUCATION AND 
TRAINING STANDARDS COMMISSION 

SUBCHAPTER lOB- N.C. SHERIFFS' EDUCATION 
AND TRAINING STANDARDS COMMISSION 

SECTION .0200 - ENFORCEMENT RULES 

.0206 SUMMARY SUSPENSIONS: OR DENIALS 

(a) The Commission may summarily suspend or deny the 
certification of a justice officer or instructor when, in the opinion 
of the Commission, the public health, safety, or welfare requires 
this emergency action of summary suspension or denial. The 
Commission has determined that the following conditions 
specifically affect the public health, safety, or welfare and 



13:3 



NORTH CAROLINA REGISTER 



August 3, 1998 



335 



APPROVED RULES 



therefore it. by and through the Director, shall utihze summary' 
suspension or denial following a full investigation of the matter 
when: 

( 1 ) the applicant for certification or the certified justice 
officer has committed or been convicted of a violation 
of the criminal code which would require a permanent 
revocation or denial of certification; or 

(2) the justice officer has failed to comply with the 
training requirements of 12 NCAC lOB .0500 and 
.0600, and. 1300; or 

(3) the certified deputy sheriff or detention officer fails to 
satisfactorily complete the minimum in-service 
training requirements as prescribed in 12 NCAC I OB 
.2 100; or 

(4) the applicant for certification has refused to submit to 
the drug screen as required in 12 NCAC I OB .0301(6) 
or .0406(c)(3) or in connection with an application for 
or certification as a justice officer or a criminal justice 
officer as defined in 12 NCAC 9A .0103(6); or 

(5) the applicant for certification or the certified officer 
has produced a positive result on any drug screen 
reported to the Commission as specified in 12 NCAC 
I OB .0410 or reported to any commission, agency, or 
board established to certify, pursuant to said 
commission, agency, or boards' standards, a person as 
a justice officer or a criminal justice officer as defined 
in 12 NCAC 9A .0103(6), unless the positive result is 



explained to the Commission's satisfaction, 
(b) Without limiting the application of Chapter I7E of the 
General Statutes of North Carolina, a person who has had his or 
her certification summarily suspended or denied may not 
exercise the authority or perform the duties of a justice officer 
during the period of suspension or denial. 

Histoiy Note: Authority G.S. 1 7E-8: 1 7E-9; 150B-3(c): 
EJf. January 1, 1992: 
Amended Eff. January I, 1993: 
Temporary Amended Eff. March 1, 1998: 
Amended Eff. April /, 1999: August 1. 1998. 



TITLE 26 - OFFICE OF ADMINISTRATIVE 
HEARINGS 

CHAPTER 1 - GENERAL 

SECTION .0100 - GENERAL 

.0102 OFFICE HOURS: FILING OF DOCUMENTS 

History Note: Authority G.S. 150B-11: 
Eff.Januaiyl. 1991: 
Repealed Eff. July 1 . 1998. 



336 



iWRTH CAROLINA REGISTER 



August 3, 1998 



13:3 



R ULES RE VIE W COMMISSION 



1 his Section contains the agenda for the next meeting of the Rules Review Commission on Thursdaw Ausust 20. 1998, 10:00 
a.m. . at 130'^ Glenwood .4ve.. .Assembly Room. Raleigh. NC. .Anyone wishing to submit written comment on any rule before 
the Commission should submit those comments to the RRC staff, the agency, and the individual Commissioners by Monday. 
.August n. 1998. at 5:00 p.m. Specific instructions and addresses may be obtained from the Rules Review Commission at 
919-"33-2~21. .Arnvne wishing to address the Commission should notif' the RRC staff and the agency at least 24 hours prior 
to the meeting: 



RULES REVIEW COMMISSION MEMBERS 



Appointed by Senate 

Teresa L. SmalKvood, Vice Chairman 

Jim Funderburke 

Vemice B. Howard 

Philip O. Redwine 

David Twiddy 



Appointed by House 

Paul Powell. Chairman 

Anita White, 2"'^ Vice Chairman 

Mark Garside 

Steve Rader 

George Robinson 



RULES REVIEW COMMISSION MEETING DATES 



July 23. 1998 
August 20. 1998 
September 17. 1998 



October 15. 1998 
November 19, 1998 



MEETING DATE: AUGUST 20, 1998 
LOG OF FILINGS 
RULES SUBMITTED: JUNE 20, 1998 THROUGH JULY 20, 1998 
AGENCY/DIVISION RULE NAME RULE CITATION 



ACTION 



DHHS/COMMISSION FOR MH/DD/SAS 

Definitions 



10NCAC45H.0201 



Amend 



JUSTICE/NC ALARM SYSTEMS LICENSING BOARD 

Statement of Purpose 

Definitions 

Required CLE Hours 

Accreditation Standards 

Non-Resident Licensee 

Recording and Reporting CLE Credits 

Non-Compliance 

EDUCATION, STATE BOARD OF 

Hearings 

Early Admission to Kingergarten 
Annual Performance Standards 
Annual Performance Standards 
Liabilit) Insurance 

TRANSPORTATION, DEPARTMENT OF/DIVISION OF MOTOR VEHICLES 

Original Application 
Reneal Applications 
Requirements 
Original Application 



12NCAC 11 .0501 


Adopt 


12NCAC 11 .0502 


Adopt 


12NCAC 11 .0503 


Adopt 


12NCAC 11 .0504 


Adopt 


12NCAC 11 .0505 


Adopt 


12NCAC 11 .0506 


Adopt 


12NCAC 11 .0507 


Adopt 


16NCAC6C.0502 


Amend 


16NCAC6E.0105 


Adopt 


16NCAC6G.0305 


Amend 


16NCAC6G.0310 


Adopt 


16NCAC6G .0501 


Adopt 


19NCAC31.0202 


Amend 


19NCAC3I.0203 


Amend 


19NCAC31 .0501 


Amend 


19NCAC31.0502 


Amend 



13:3 



NORTH CAROLINA REGISTER 



August 3, 1998 



337 



RULES REVIEW COMMISSION 



Renewal Application 

STATE BOARDS/DENTAL EXAMINERS, BOARD OF 

Definitions 

STATE BOARDS/REAL ESTATE COMMISSION, BOARD OF 

Proof of Licensure 



19NCAC3I.0503 Amend 



21 NCAC I6V.0102 Amend 



21NCAC58A.0101 Amend 



RULES REVIEW COMMISSION 

July 23, 1998 
MINUTES 

The Rules Review Commission met on July 23. 1998, in the Assembly Room of the Methodist Building, 1307 Glenwood Avenue, 
Raleigh. North Carolina. Commissioners in attendance were Chairman Paul Powell, Teresa L. Smallwood. Vemice B. Howard, 
George S. Robinson, Jim R. Funderburk, Anita A. White, and Mark P. Garside. 

Staff members present were: Joseph J. DeLuca, Staff Director; Bobby Bryan, Rules Review Specialist; Glenda B. Gruber, 
Administrative Assistant; and Sandv Webster. 



The following people attended: 

Valerie Chaffin 
Charlotte Hall 
Portia Rochelle 
Shamese Ransome 
Patricia Purser 
David Brown 
Dedra Alston 
Ed Norman 



Hunton & Williams 

DHHS/MH/DD/SAS 

DHHS/DMA 

DHHS/DSS 

DHHS/DSB 

DENR 

DENR 

DENR 



APPROVAL OF MINUTES 

The meeting was called to order at 10:05 a.m. with Chairman Powell presiding. He asked for any discussion, comments, or 
corrections concerning the minutes of the June 18. 1998 meeting. There being none, the minutes were approved. 

FOLLOW-UP MATTERS 

10 NCAC I4G .0102 - DHHS/Commission for MH/DD/SAS: The rewritten rule submitted by the agency was approved by the 
Commission. 

10 NCAC 41 A .0007 - DHHS Social Services Commission: The rewritten rule submitted b\ the agency was approved by the 
Commission. 

15A NCAC lOG .0404 - DENR'Wildlife Resources Commission: The rewritten rule submitted b\ the agency was approved by the 
Commission. 

LOG OF FILINGS 

Chairman Powell presided over the review of the log and all rules v\ere approved with the following exceptions: 

15ANCAC 7H .0310- DENR/Coastal Resources Commission: This rule was withdrawn by the agency. 

1 5 A NCAC 1 8 A .3 1 1 , ,3 1 02. .3 1 05, .3 1 08, and .3 1 09 - DEN R Commission for Health Ser\ ices: The Commission objected to .3 1 1 
due to ambiguit> and lack of necessity. Because there is no authorit) for setting occupational standards for workers and supervisors. 
there is no need for the definitions in ( 1 ) and (2). It is also not clear what standards the Department will use in approving the one day 
courses and video instructions. In the last sentence in (7). it is not clear if a visual inspection must include one of the listed activities. 



33H 



NORTH CAROLINA REGISTER 



Ausiist3, 1998 



13:3 



R ULES RE VIE W COMMISSION 



The Commission objected to .3102 due to lack of statutory authority. The last sentence in this rule is not consistent with G.S. 130A- 
131.7(12). As long as the lowest blood test shows a blood lead concentration of 15 - 19 micrograms per deciliter, it is irrelevant how 
high the others are. The Commission objected to .3105 due to ambiguity". In (b)(3), it is not clear what is meant b> "properly" 
installed, established, and maintained. The Commission objected to .3108 due to lack of statutory authority and ambiguity. In (a), 
it is not clear what form and manner is prescribed for applications for certificates of compliance. In (c)(1), there is no authority for 
the Commission to set occupational requirements for workers and supervisors performing work to comply with the maintenance 
standard. In (c)(3), it is not clear what manner has been prescribed by the owner for the written summary. In (c)(4), it is not clear 
what standards the Department will use in approving laboratories or methods. In (e), it is not clear what manner is prescribed by the 
Department. The Commission objected to .3 109 due to ambiguity and lack of necessity. In (e), it is not clear what method is approved 
by the Department. As written, the paragraph is meaningless since the Department sends the notice. Commissioner Rader voted not 
to approve the rules because they exceed their statutory authority in that they may arguably require demolition of a structure. 

COMMISSION PROCEDURES AND OTHER MATTERS 

Mr DeLuca reported on his trip to Salt Lake Cit> for the NASS/ACR (National Association of Secretaries of State/Administrative 
Codes and Registers). The next meeting will be on August 20, 1998. 



The meeting adjourned at 10:55 a.m. 

Respectfully submitted, 
Sandy Webster 



13:3 NORTH CAROLINA REGISTER August 3, 1998 339 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions along with an index 
to all recent contested cases decisions which are filed under North Carolina's Administrative Procedure Act. Copies of the 
decisions listed in the index and not published are available upon request for a minimal charge by contacting the Ojfice of 
Administrative Hearings. (919) '33-2698. 



OFFICE OF ADMINISTRATIVE HEARINGS 

Chief Administrative Law Judge 

JULIAN MANN. Ill 

Senior .Administrative Law Judge 

FREDG. MORRISON JR. 

ADMIMS TRA TI I E LA U Jl DGES 



Brenda B. Becton 

Sammie Chess Jr. 
Beecher R. Gra> 
Melissa Owens 



Meg Scott Phipps 

Robert Roose\elt ReilK Jr. 

Dolores O. Smith 



AGENCY 

ALCOHOLIC BEN ER\GE CONTROL COMMISSION 

Alcoholic Bexerage Control Commission v Jesse Jacob Jo\ner. Jr 
."Mcoholic Bexerage Control Commission \ .Axis Entertainment 
Sokha Huor Ramadneh \ .-Mcoholic Be\erage Control Commission 
Alcoholic Beverage Control Commission \ .Axis Entertainment 
Tarus Jackson \ .Alcoholic Beverage Control Commission 

CRIME CONTROL AND PLBLIC SAFETY 

Marcella Skaggs \ Crime Victims Compensation Commission 
Talmadge E McHenrx v Crime Victims Compensation Commission 
Kenneth T Lvlle v Crime Victims Compensation Commission 
Mia Thompson-Clark \ Crime Victims Compensation Commission 

ENVIRONMENT AND NATLRAL RESOLRCES 

Ronald Prater \ Department ot Environment and Natural Resources 
John M Silvia \ Department of Environment and Natural Resources 
Gregor. B Jackson. Brenda R Jackson \ Greene Ct> HIth Dept . ENR 
Robert G GotT. Sr \ Department of En\ ironmenl and Natural Resources 
Scotland Water. Cedar Circle \ Environment and Natural Resources 
Robert G GotT. Sr v Department of Environment and Natural Resources 

HEALTH AND HLMAN SERVICES 

Stanlev C Ochulo \ OtT .Administrative Hearings. Mr R Marcus Lodge 
Oliver C Johnson. Hazel T Johnson \ Health and Human Ser^ ices 
Louise Sireater v Health and Human SerMces 
Richard E Lawrence. Rebecca .A Lawrence \ Health and Human Ser\ ices 

Division of Facility Services 

Mooresville Hospital Mgmt .Associates. Inc d/b/a Lake Norman Regional 

Medical Center \ DHR. Facilitv Services. Ceniflcate of Need Section 
and 

.Autumn Corporation and McKinlev V Jumev 
Constellation Health Sen ices. Inc and Constellation Senior Services. 

Inc \ DHR. Facilm Services. Group Care Licensure Section 
and 

Diversified Health Group. LLC and The Innovative Health Group. Inc 
Sunlite Retirement Home. \\ inme Jane Johnson \ DHR. Facilm Sen ices 
.Ann Davis Rest Home \ Group Care Licensure Section 



CASE 




DATE OF 


PLBLISHED DECISION 


NLMBER 


ALJ 


DECISION 


REGISTER CITATION 


97 ABC 1438 


Phipps 


06/19/98 




98 ABC 0357*- 


Reillv 


07/02/98 




98 ABC 0382 


Smith 


06/30/98 


13 03 NCR 350 


98 ABC 0401 ♦• 


Reillv 


07/02/98 




98 ABC 0768 


Smith 


07/13/98 




98 CPS 006.S 


Owens 


06/05/98 




98CPS01I6 


Gra\ 


06/24/98 




98CPS0I7b 


Reillv 


07/06/98 




98 CPS 0349 


Chess 


05/14/98 




97EHR045I 


ReilK 


07/02/98 




97EHR 1646 


Chess 


06/03/98 




98 EHR 0042 


Reillv 


07/02/98 




98 EHR 0072*- 


Grav 


06/25/98 




98 EHR 0236 


Smith 


06/09/98 




98 EHR 0448'- 


Grav 


06/25/98 




98 DHR 002 1 


Reillv 


06/24/98 




98 DHR 0090 


Grav 


07/08/98 




98 DHR 019(1 


Grav 


06/03/98 




98 DHR 0209 


Phipps 


07/15/98 




97 DHR 1209 


Reillv 


06/23/98 





97 DHR 1529 



98 DHR 0124 
98 DHR 0197 



Grav 



Phipps 
Phipps 



06/24/98 



06/11/98 
06/23/98 



340 



NORTH CAROLINA REGISTER 



August 3. 1998 



13:3 



CONTESTED CASE DECISIONS 



AGENO 

Diane Lingard v DHR. Facilm Svcs. Health Care Personnel Reg 
Kimberly Annette Smith Hull \ DHHS. Division of Facilit\ Ser\ices 
Deborah Ann Holt v DHHS. Division of Facilitv Services 
Johnnie E Williams v DHHS. Division of Facilitv Services 

Division of Medical Assistance 

Charlotte-Mecklenburg Hospital Authority, d/b/a Carolinas Medical Ctr. 
and Harr\ Mahannah. M D v DHHS. Division of Medical Assistance 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


98 DHR 02 14 


Becton 


06/22/98 


98 DHR 0239 


Phipps 


06/23/98 


98 DHR 0348 


Phipps 


06/22/98 


98 DHR 0639 


Reilly 


07/02/98 


97 DHR 0621 


Smith 


07/08/98 



PI BUSHED DECISION 
REGISTER CITATION 



Division of Social Services 

William & Crvstal Steakley \ 



DHHS. Division of Social Services 



Child Support Enforcement Section 
Jeffery Lee Graves v Department of Human Resources 
Donald L Carr. Jr v Department of Human Resources 
Marvin Diggs v Department of Human Resources 
Dennis Lee McNeill v Department of Human Resources 
BvTon O Ashby II V Department of Human Resources 
Billy Anthony Jr v Department of Human Resources 
Alton D Bagley \ Department of Human Resources 
Bemel B Berr\ Jr v Department of Human Resources 
Anthony MontgomePi v Department of Human Resources 
Terrv' Letterman v Department of Human Resources 
Paul J Mobley. Jr v Department of Human Resources 
Robert A Sherer v Department of Human Resources 
Wade A Burgess v Department of Human Resources 
Robert L Robinson \ Department of Human Resources 
Jamie A Hurtt \ Department of Health & Human Services 
Renardo Jenkins v Department of Human Resources 
Anthony Love \ Department of Human Resources 
Steven Kent Gold \ Department of Human Resources 
Leroy J Poole v Department of Human Resources 
Michael Bernard Hill v Department of Health & Human Services 
Charlie Ratliff Jr v Department of Health & Human Services 
Tabatha D Pate \ Department of Human Resources 
Charlie Gray Hunt Jr v Department of Human Resources 
Robert L Williams \ Department of Human Resources 
Elijah G Deans v Department of Health & Human Senices 
Vickie E Lane v Michael L Adams. Department of Human Resources 
Barbara Fanta-Blandine v Department of Human Resources 
Tenta M Sharpe v Department of Human Resources 
Ruth McFadden \ Department of Human Resources 

Division of Women 's and Children 's Health 

Joseph A Nawas \ DHHS. Women's/Children's Health. Nutrition Svcs 



98 DHR 0076 


Gray 


07/20/98 


98CRA0137 


Becton 


06/23/98 


98 CRA 0545 


Reilly 


06/08/98 


98CRA0588 


Reilly 


06/24/98 


96CSE1305 


Grav 


06/22/98 


96CSE 1435 


Mann 


07/15/98 


97CSE 1393 


Reillv 


06/24/98 


97CSE 1424 


Chess 


06/02/98 


97CSEI435 


Smith 


06/12/98 


97CSE 1442 


Phipps 


06/17/98 


97CSE 1492 


Smith 


06/22/98 


97CSE1568 


Phipps 


06/17/98 


97CSE 1605 


Mann 


07/15/98 


98CSE0071 


Morrison 


06/1 2/98 


98CSE0130 


ReilK 


07/15/98 


98CSE0307 


Morrison 


07/06/98 


98CSE0310 


Smith 


06/23/98 


98CSE0312 


Phipps 


06/23/98 


98 CSE 0333 


Morrison 


07/01/98 


98CSE0375 


Reillv 


07/02/98 


98 CSE 0421 


Becton 


07/15/98 


98 CSE 0449 


Mann 


07/15/98 


98 CSE 0556 


Becton 


06/23/98 


98 CSE 0607 


Smith 


06/22/98 


98 CSE 0682 


Smith 


06/22/98 


98 CSE 0867 


Phipps 


07/20/98 


96 DCS 2105 


Grav 


07/08/98 


97 DCS 1486 


Morrison 


06/22/98 


98 DCS 0468 


Morrison 


06/09/98 


98 DCS 0675 


Reilly 


07/15/98 


98 DHR 0637 


Phipps 


07/02/98 



JISTICE 



Alarm Systems Licensing Board 

Claude Da\ id Huggins v Alarm Systems Licensing Board 

Education and Training Standards Division 

Odis Fitzgerald Darden \ Sheriffs' Education & Training Standards Comm 
Hearl Oxendine v Criminal Justice Education & Training Stds Comm 
Dar\l LaMar Brvant v Sheriffs' Education & Training Standards Comm 
William Scott K.ey v Sheriffs' Education & Training Standards Comm 
Paul Harvey Taylor v DOJ. Criminal Justice Ed & Training Stds Comm 



98DOJ0871 


Morrison 


07/09/98 


97 DOJ 1698 


Reillv 


06/12/98 


98 DOJ 0121 


Smith 


06/22/98 


98 DOJ 0430 


Grav 


07/21/98 


98 DOJ 0432 


Becton 


06/08/98 


98 DOJ 0841 


Phipps 


07/10/98 



STATE PERSONNEL 



Department of Correction 

Terrs T Rees v Department of Correction 
Leon Owens v Department of Correction 
Terrs T Rees s Department of Correction 
Carl W Craven. II s Pender Correctional Institution 

Crime Control and Public Safet)- 

Roger D Davis \ Crime Control & Public Safety, St Hss-y Patrol 



97 0SP 1671*" 


Smith 


06/30/98 


98 OSP 0050 


Becton 


07/10/98 


98OSP0I19*-' 


Smith 


06/30/98 


98 OSP 0633 


Smith 


06/25/98 


97 OSP 061 7 


Chess 


05/27/98 



13:3 



NORTH CAROLINA REGISTER 



August 3, 1998 



341 



CONTESTED CASE DECISIONS 



AGENCY 

Employment Security Commission 

Jane B Bolin and Arlenc G Sellers \ Employment Securir. Commission 
Jane B Bolin and Arlene G Sellers \ Emplosment Secunts Commission 

Environment and Natural Resources 

Charles Anthony Bruce v ENR. Division of Parks and Recreation 

Health and Human Services 

Angela M Miles \ Cumberland County Department of Social Services 
Chanty S\vick\ Cumberland County Department of Social Sen ices 
Ruth Holrosd V Montgomen Cty DSS. Children's Senices 
Angela M Miles \ Cumberland County Department of Social Services 
Delores Laveme Rich \ Health & Human Sen ices. Dorothea Di\ Hosp 
Anthony M Ruiz v Department of Health & Human S\cs. 'I'outh Svcs 

Secretary of State 

Jonathans! Demers \ Department of Secretars of State 

Department of Transportation 

Earn \V Da\is\ Depanment of Transportation 

University of North Carolina 

Douglas Eo\e. Jr \ L'NC Hospitals 

Deborah J Fenner \ NC Central Uni\ ersity 

Joyce M Smith \ North Carolina Central University 

Jonathan L Fann v North Carolina State University Physical Plant 

STATE TREASl RER 

Hugh A Wells \ Consolidated Judicial Retirement System of NC. 
Bd of Trustees Teachers and State Emplovees' Retirement Svstem 



CASE 




DATE OF 


PI BUSHED DECISION 


MMBER 


AU 


DECISION 


REGISTER CITATION 


97 0SP 1122'' 


Chess 


06/02/98 




97 0SP1134*' 


Chess 


06/02/98 




98 OSP 0240 


Reilly 


06/08/98 




97OSP06I3'' 


Gra\ 


07/10/98 




97 OSP 0775 


Gra\ 


07/10/98 




97 OSP 1586 


Smith 


05/27/98 


13:02 NCR 257 


98 OSP 0084*' 


Gra\ 


07/10/98 




98 OSP 0120 


Gra\ 


07/08/98 




98 OSP 0454 


Gray 


06/04/98 




97 OSP 1018 


Becton 


07/07/98 


13:03 NCR 343 


98 OSP 0241 


Gray 


07/08/98 




97 OSP 0662 


Reillv 


06/08/98 




97 OSP 0902 


Chess 


05/29/98 




97 OSP 1297 


Smith 


06/25/98 




98 OSP 0465 


Becton 


07/17/98 




98DST0316 


Morrison 


06/05/98 


13:01 NCR 166 



TR\NSPORTATION 

Da\ id Warren Dew et al \ Motor Vehicles. .Alexander Killens Comm 



95 DOT 1144 



Grav 



06/04/98 



I NIVERSIT^ OF NORTH CAROLINA 

Ladonna P James \ UNC Hospitals 



98UNC0591 



Becton 



07/20/98 



Consolidated Cases. 



.U2 



NORTH CAROLINA REGISTER 



August 3, 1998 



13:3 



I 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF WAKE 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

97OSP1018 



JONATHAN M. DEMERS, 

Petitioner, 

V. 

DEPARTMENT OF SECRETARY OF STATE, 
Respondent. 



RECOMMENDED DECISION 



This matter was heard by Administrative Law Judge Brenda B. Becton in Raleigh, North CaroHna on March 5-6, 1998. 

APPEARANCES 
Petitioner: David S Crump. Attorney At Law, Raleigh, North Carolina 

Respondent: Marian Hill Bergdolt. Associate Attorney General, N.C. Department of Justice, Raleigh, North Carolina 

ISSUES 

1 . Was the Reduction in Force ("RIF") of Petitioner's Administrative Assistant II position with Respondent's office substantially 
motivated by retaliation or political affiliation discrimination when the majority of Petitioner's job duties were eliminated 
when federal legislation was passed which eliminated individual state review of certain securities filings? 

2. Were Petitioner's priorit) re-employment rights violated by Respondent during the twelve-month priority re-employment 
period? 

WITNESSES 

The following individuals testified for Petitioner: Petitioner. Charles Malone. Eugene Bruton, Donald Roberts, Perry 
Boseman, Edward G. Carr, Jr., John Curry, Susan Smiley, and Joyce Weathersby. 

The following individuals testified for Respondent: Eugene J. Cella. Edward G. Carr, Jr., and Joyce Weathersby. 

EXHIBITS 

The following proposed exhibits submitted by Petitioner were actually admitted into evidence at the hearing: 



Exhib 
Exhib 
Exhib 
Exhib 
Exhib 
Exhib 
Exhib 
Exhib 
Exhib 
Exhib 
Exhib 
Exhib 



t 1. Memo from Ed Carr to Jonathan Demers dated December 4. 1996; 

1 2. Memo fi^om Ed Carr to Jonathan Demers Regarding DCl Grievance; 

t 3, Memo from Jonathan Demers Regarding DCI Grievance; 

1 4. Memo from Ed Carr to Jonathan Demers Regarding DCI Grievance; 

t 5. August 6. 1996 - Memo to Perr\ Boseman from Jonathan Demers; 

t 6. August 9. 1996 - Memo to Whom It May Concern from Jonathan Demers; 

t 7, August 8. 1996 - Memo to Jonathan Demers from Perry Boseman; 

t 8. Exhibit 9. Application for Employment; 

t 10. Letter to Jonathan Demers from Eugene Cella dated October 29, 1 996; 

t 1 1 A. Application for Employment; 

t 1 IB, Memo from Eugene Cella to Jonathan Demers dated October 29, 1996; 

t 12, Application for employment. 



The following proposed exhibits submitted by Respondent were actually admitted into evidence at the hearing 
Exhibit B, Letter from Office of State Personnel to Clyde Smith with Reduction in Force Plan attached; 
Exhibit C, Jonathan Demers" Work Plan. 



13:3 



NORTH CAROLINA REGISTER 



August 3, 1998 



343 



CONTESTED CASE DECISIONS 



Based upon the official documents in the file, sworn testimonv of the witnesses, and other competent and admissible 
evidence, the undersigned makes the following: 

FINDINGS OF FACT 

1. Petitioner was emplo\ed with Respondent in its securities division as a securities examiner from October 1991 to November 
30. 1996. His position was classified as an Administrative Assistant II. T vol II. p. 63; Prehearing Order Stipulation I. 

2. Petitioner's main job duties in his position were to review and analyze non-profit and mutual fund offering documents to 
establish compliance with the North Carolina General Statutes. This required knowledge of securities laws and that Petitioner 
review and independently determine ifthe filings met the requirements of the law. T vol II, pp. 21-22. 152-155; Respondent's 
Exhibit C. 

3. The National Securities Markets Improvements Act of 1 996 ("NSMIA") was passed in the later part of 1 996. Under NSMI A, 
states are prohibited from reviewing and anaKzing non-profit and mutual fund offering documents that meet standards 
established under federal securities law. After the passage of NSMIA, mutual fund and non-profits filings became notice 
filings at the state level. No independent review of the filings is completed by states. T vol I. p. 186; T vol II. pp. 7, 22, 158- 
159. 

4. The main, non-clerical, job duties performed b\ Petitioner were eliminated upon the passage of NSMIA. Since the passage 
of NSMIA. the employees responsible for handling the notice filings are in data-entry or clerical positions with a lower salary 
or pay grade than that held by Petifioner. T vol 11. pp. 7-8. 61. 159. 

5. Prior to the passage of NSMIA. Respondent was aware that Congress was considering passing a law that would eliminate 
individual states' review of some filings. As a result, meetings were held with employees of the securities division prior to 
the passage of NSMIA informing them that reductions in force were possible if federal legislation, such as NSMIA. was 
passed. In addition. Ed Carr. Respondent's Deputy Secretar. of State and Personnel Director, met with Petitioner a number 
of times to inform him that his position would probabK be eliminated ifthe Act passed, so that he would not be surprised. 
Tvol l.pp. 108-109; T vol II. pp. 102-103. 155-157.' 

6. Two positions in the securities division were eliminated as a result of the passage of NSMIA. Petitioner's position and a 
position held b\ Gene Bruton. The position held b\ Mr. Bruton was also one that involved the review and anaKsis of 
securities filings or private placement documents. ApproximateK 60° o of Mr. Bruton's job duties were eliminated by 
NSMIA. Tvoll. pp. 184-186; Tvol II. pp. 156. 

7. Prior to the passage of NSMIA and during the period when the legislation was pending. Perry Boseman, Petitioner's 
superv isor. discussed the legislation w ith Petitioner and told Petitioner that he ought to learn how to handle different types 
of securities filings, those that were not the subject of the proposed legislation. T vol II. p. 106-107. 

8. The decision to eliminate Petitioner's securities enforcement position was made b\ Secretarv of State Janice H. Faulkner after 
she had discussed alternatives with Mr. Cella, Petitioner's immediate supervisor, and others. T vol II, pp. 156. 202-204, 206- 
208. 

9. Petitioner was informed that his position was being eliminated and of his prioritv re-employment rights in a October 29, 
1996. letter from Mr. Cella and at a meeting held with Mr Carr. In addition. Respondent completed the priority re- 
employment application for Petitioner T vol 1. pp. 111-112. 126-127. 129-130. 189-191; Petitioner's Exhibit 10. 

10. Respondent had a Reduction in Force Plan (or Guidelines) that it had adopted in 1985 and which was on file with the Office 
of State Personnel. The Plan focuses on reductions in force occurring as a result of budget cuts rather than the elimination 
of a specific emplovee's job duties. Therefore, the Plan focuses on steps to take vshen a loss of funding results in the need 
to eliminate positions. Some of the Plan's requirements are not necessarily applicable to the type of RIF that occurred in this 
case. However, as required in the Plan. Respondent did the following: 

A. Respondent considered alternatives in making the decision to eliminate Petitioner's position. It was 

determined that it was the least disruptive to eliminate Petitioner's position, since the skills required by 
the person holding Petitioner's position were no longer required. Furthermore, at the time of the RIF. 
Respondent did not have an available position in its Securities Div ision for someone w ith Petitioner's skills 
and qualifications. 

344 NORTH CAROLINA REGISTER August 3, 1998 13:3 



CONTESTED CASE DECISIONS 



B. Through various meetings, employees that might have been subject to a reduction in force as a result of the passage 
of NSMIA were notified as soon as possible that their positions might potentially be eliminated. Then, once 
NSMIA was adopted. Petitioner was given notice of the elimination of the position very soon after the decision was 
made. 

C. Petitioner was given written notice of the RIF decision in a letter from Mr. Cella dated October 29, 1 996. The letter 
provided the basis for the decision and informed Petitioner that if he wished to appeal the RIF, he should "see Ed 
Carr for an explanation of [his] rights and written information on the appeal process." 

D. On October 29, 1996, Petitioner met with Mr. Carr. In that meeting. Petitioner was advised of his priority re- 
employment rights, appeal rights, and his eligibility for any other services or benefits. 

T vol I, pp. 53, 111-114, 126-128, 130-131, 189-191; T vol II, pp. 108-111, 155-158, 160, 206-208; Petitioner's Exhibit 10; 
Respondent's Exhibit B. 

1 1 . The Office of State Personnel's RIF Office maintains an automated referral system. Every month the RIF Office sends state 
agencies a priority re-employment inventory which lists job classification titles and the number of priority applicants they 
have in their system for those titles. When an agency has a vacancy, it is required to check that inventory. If the 
classification title for the vacancy is on the register, the agency is then required to order the priority re-employment register 
from the Office of State Personnel. The agency is then required to review priority re-employment applications, and if a 
priority re-employment applicant meets the minimum qualifications for the vacancy, they are required to give that candidate 
an interview. They are also required to oifer the position to qualified priority re-employment applicants over applicants who 
are not currently state employees. 

12. Petitioner was provided with at least thirty days written notice of the RIF and placed on administrative leave for the purpose 
of commencing his job search during the thirty-day period. Petitioner was officially informed of the RIF on October 29, 
1996. and received his salary and benefits through November 30, 1996. Initially, Respondent tried to figure out a method 
for paying both Petitioner and Mr. Bruton through January, as a result of concerns raised by Mr. Bruton regarding health 
insurance coverage. However, Respondent determined, through conversations with the Office of State Personnel, that this 
could not be done, and paid Petitioner only for thirty days after notice of the RIF, or through November 30, 1996. T vol 1, 
pp. 116-118, 189-191; Prehearing. Order Stipulations (a) and (c). 

13. In 1995, Respondent was audited by the SBl and State Auditor's office. The written reports from the audits eventually caused 
the then Secretary of State, Rufus Edmisten, to resign. Prior to the audits, and Secretary Edmisten's resignation, the office 
had a number of employees that worked on "Special Projects." Special Projects tended to be personal work for Secretary 
Edmisten and included driving Secretary Edmisten to various events and performing other duties for him. Employees who 
performed Special Projects were not required to perform their regular job duties while they worked on the Special Projects. 
In addition, these employees were granted some favoritism by Secretary Edmisten. Petitioner was a member of Secretary 
Edmisten's Special Projects Team, which was called the Secret Squirrel Squad. Eventually. Petitioner was taken off of the 
Special Projects Team, allegedly because he spoke to members of the press during the audit period. T vol 1. p. 161 ; T vol 
II, pp. 14-15, 46-47, 76, 79-80, 1 30, 1 66- 1 67, 1 88- 1 89. 

14. At the time that Petitioner was hired, and throughout his tenure in the Edmisten administration, Mr. Cella and Mr. Boseman 
had very little supervisory power over individuals such as the Petitioner who were involved with the "special projects" or 
"Secret Squirrel" activities that took place. Such individuals were tasked to the "special projects" by members of 
Respondent's management directly, without necessarily going through the official chain of command. 

15. Members of the Special Projects Team often bypassed their direct supervisors and spoke directly to Secretary Edmisten if 
they had an issue that they wanted to raise. For example, when the Secretary of State's office relocated. Petitioner, as all other 
Administrative Assistant II employees, did not have an office in the new building. He went directly to Secretary Edmisten 
to complain about this and eventually an office was created for him. T vol. 11, pp. 167-168, 182-183, 197. 

16. The audits found a number of abuses in Secretary Edmisten's administration, including the Special Projects. After the audits, 
under Secretary Edmisten and after Secretary Edmisten's resignation under Secretary Faulkner, the interim Secretary of State 
who was appointed to replace Secretary' Edmisten, steps were taken to respond to the issues raised in the audits, which 
required the implementation, for the first time, of standard policies and procedures. For example, employees were required 
to document reimbursable expenses, designate the hours worked, and could be terminated for making misrepresentations on 
employment applications. In addition, employees were no longer allowed to circumvent the chain of command and were 



13:3 NORTH CAROLINA REGISTER August 3, 1998 345 



CONTESTED CASE DECISIONS 



required to raise issues with their supervisors, instead of appeahng directly to the Secretary. Secretary Fauiioier also 
implemented some new policies. For example, after problems arose when employees called radio talk shows to discuss issues 
raised in the audits, disrupting the work day. Secretary Faulkner required employees to leave their doors open and turn off 
their radios. Secretary Faulkner also took awa\ the law enforcement powers of Securities Investigators as a result of abuses 
in power revealed in the audits. The changes resulting from the audits were difficult for some employees that had worked 
under Secretary Edmisten. including Petitioner, to accept. T vol 1, pp. 75-76, 87-90, 93-94, 158, 165-166, 176; T vol II, pp. 
23-25, 81,83-'84. 95. 172-174. 

17. After Secretarv Faulkner took office. Eugene Cella became her Chief of Staff. 

18. Petitioner was active in the audit process, as were most, if not all Respondent's employees. He participated in a number of 
interviews with both the Auditors" office and SBI. He also spoke to the press and a number of organizations about his 
activities as a member of the Special Projects Team, once the audits became public. T Vol 11, pp. 14. 16-17. 77-78, 84-86, 
92,94-95, 168-169, 185, 187. 

19. Petitioner established that his name was processed on the Division of Criminal Information ("DCl") terminal by Mr. Cella 
who was a certified DCl operator. An audit was completed by DCI regarding Mr. Cella"s use of the DCI terminal. The audit 
was completed after John Curr\', the employee that discovered the DCI checks on Petitioner, contacted DCl about the checks. 
A final report regarding the appropriateness of the use of the DCl equipment by Mr. Cella was never completed, nor 
conveyed to Mr. Cella. T vol I. pp. 70-71,73-74,79-81, 143-150, 153: T vol 11. pp. 160. 162-163. 

20. Mr. Cella completed the DCI checks, with Secretary Faulkner's approval, because (a) Petitioner sometimes worked in the 
securities enforcement area; (b) Petitioner had failed to complete the criminal history portion of a second Application for 
EmploNTnent; and (c) it was discovered that Petitioner had misrepresented the extent of his college education in his initial 
Application for Employment. ' In that application. Petitioner stated that he had completed 12 semester hours at NC State 
University. In fact. Petitioner only attended one meeting of one class at NC State University. Another application was 
required because it was revealed during the Auditors' audit that a number of Respondent's employees had incomplete 
employment applications. In correcting matters raised in the audit, employees with incomplete applications were asked to 
complete second applications. Petitioner had a difficult time completing the second application. The employees were given 
one week to complete their applications. All emplo>ees complied with this deadline, except Petitioner. It took Petitioner over 
a month to complete his application. Even then, the criminal history section of the application was incomplete (this section 
was also not complete in the application that Respondent considered as Petitioner's initial application) and other information 
was omitted. T vol II. pp. 126-127. 161-163. 180: Petitioner's Exhibits 10 and 1 1-B; Prehearing Order Stipulation (0- 

21 . Petitioner filed a written grievance as a result of the DCI checks. In the grievance. Petitioner asked about the appropriateness 
of the checks. Eventually. Respondent determined that the issue was not a grievable one under N.C. Gen. Stat. §126-34.1 
and related regulations. Respondent suggested that the issue should be raised with DCI. since that agencN controls the use 
of its equipment. Petitioner did not take an\ action to appeal the determination that the issue was not grievable b\ filing a 
contested case petition with the Office of Administrative Hearings, or otherwise. T vol 1, pp. 121-123; T vol 11, pp. 70-75; 
Petitioner's E.xhibit 2. 3. 4. 5. 6 and 7. 

22. Petitioner supported Richard Petty in his bid for the Secretar\' of State's office. Petitioner had a bumper sticker on his car 
indicating his support for Mr. Petty — and spoke about it within the office. T vol 11. p. 123. 

23. From November 1996 until the date of the hearing, there have been at least 26 vacancies in the Department of the Secretary 
of State. The Respondent did not call Petitioner regarding any of those 26 vacancies. Except for one of the 26 vacancies, 
there is no evidence in the record about whether the Petitioner was minimally qualified for any of the positions. T vol I, p. 52; 
Tvol II. pp.120-121. 

24. The Office of State Personnel notified the Petitioner about a Notaries position with the Respondent. T vol II, p. 12 1 . 



Petitioner contends that the application that was produced as his initial application was in fact his second application. The 
produced application is a handwritten application that Petitioner alleges w as completed in a huny right before his interview for the securities 
examiner position. Petitioner claims that his first application was a t\ped application which Respondent misplaced. Petitioner also claims that he 
was asked to complete other applications, none of which were produced. T \ol II. pp. 64-66. 135. 



346 NORTH CAROLINA REGISTER Augusts, 1998 13:3 



CONTESTED CASE DECISIONS 



25. Petitioner applied for the Notaries position. The Notaries position is the only position with Respondent that he applied for 

during his twelve-month priority re-employment period (from November 1996 through October 1997). He was granted an 
interview for the position. No information was provided that would establish that this position had ever been filled. T vol 
II, pp. 121-122. 

CONCLUSIONS OF LAW 

1 . The Office of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Chapter 1 26 and 
Chapter 150B of the North Carolina General Statutes and has the authority to issue a recommended decision to the State 
Personnel Commission ("SPC") which shall make the final decision. 

The Reduction in Force Decision 

2. Neither the Secretary of State's RIF Plan nor law requires that a current employee's services be terminated upon a decision 
to abolish his or her position as the result of a decision to implement a reduction in force. However, an employer is not 
required to create a new position in order to refi-ain fi-om RIFing an employee whose position has been eliminated. 

3. The law and administrative rules require that certain procedural requirements be met before a position can be eliminated 
through a reduction in force. An employee must be informed of the RIF as soon as is practicable. Information regarding the 
employee's priority re-employment rights must be provided to the employee. Thirty days notice of the separation must be 
given prior to the RIF. Finally, if the employee wants priority re-employment consideration, the employer must submit an 
application on the employee's behalf to the Office of State Personnel requesting priority consideration. N.C. Gen. Stat. §126- 
7.1, N.C. Administrative Code, Title 25, Articles 1 D.0504 and 1 D.0515. 

4. These requirements were met by Respondent in eliminating the Securities Examiner position. For example: 

A. Respondent informed Petitioner of the RIF as soon as practicable. Petitioner was informed through the 
employee meetings that his position could be eliminated if NSMIA was passed prior to its passage. The decision 
to eliminate Petitioner's position was conveyed to Petitioner very soon after the passage of NSMIA. 

B. Petitioner was informed of his priority re-employment rights in the October 29. 1996, meeting with Mr. 
Carr. In addition. Respondent assisted in the completion of the priority re-employment application. 

C. Petitioner was given thirty days notice of the RIF. He was notified of the RIF on October 31, 1996, and 
received his salary and accrued all benefits through November 30, 1996. 

5. Respondent's RIF Guidelines provide that "[slepartion of emploNces through reduction in force shall occur only after every 
feasible alternative has been exhausted." After the primary functions of Petitioner's position were eliminated by NSMIA, 
what remained were essentially clerical functions. There is no evidence that there was another position available that 
Petitioner could have filled. There is no evidence that Petitioner was capable of performing other different duties in the 
Securities Division. Even if Petitioner was able to perform other job functions in the Securities Division, Respondent was 
not obligated to create another position to replace the position that was eliminated. 

Retaliation Claim 

6. Under North Carolina law, a State employee cannot be discharged, threatened or otherwise discriminated against because 
the employee reports any activities of "a State agency or State employee constituting: 

( 1 ) A violation of State or federal law, rule or regulation; 

(2) Fraud; 

(3) Misappropriation of State resources; or 

(4) Substantial and specific danger to the public health and safety." 

N.C. Gen. Stat. §126-84(1997). 

7. A prima facie case of retaliation because of a reported activity is established by showing the following elements: (A) 
evidence of participation in a protected activit\ ; (B) followed by an adverse employment activity; and (C) establishment that 
the protected activity was a substantial or motivating factor in causing the adverse action. Hanton v. Gilbert. '126 N.C. App. 



13:3 NORTH CAROLINA REGISTER August 3, 1998 347 



CONTESTED CASE DECISIONS 



561. 571. 486 S.E.2d 432. 439 (1997). 

8. Jurisdiction for retaliation claims brought under N.C. Gen. Stat. § 126-84 lies in our superior courts. However, to the extent 
that the Petitioner claims that a retaliaton.' motive tainted the reduction in force process, the undersigned will address the 
issues raised b\ the evidence presented at the hearing. 

9. Petitioner has failed to establish a prima facie case of retaliation under N.C. Gen. Stat. § 126-84 for reporting the DCl checks 
that were run on him. No evidence was presented that Petitioner engaged in a protected activit\'. and no evidence was 
presented that established that the DCI checks violated State or federal law. rules or regulations, since Mr. Cella was a 
certified DCI operator at the time that the checks were run and Petitioner had failed to answer the criminal history section 
of his emplovment applications and misrepresented the e.xtent of his college education. Therefore. Mr Cella had a legitimate 
purpose for running the checks. In addition, no evidence was presented that would establish that the reporting of the DCI 
checks was a substantial or motivating factor in the decision to RIF the position. The decision to RIF the position was made 
as a result of the passage of that act had on Petitioner's job duties. 

10. In addition. Petitioner failed to establish a prima facie case of retaliation under N.C. Gen. Stat. §126-84 for Petitioner's 
participation in the 1995 SBl and Auditor's oftlce audits of Respondent. The evidence presented by Petitioner related to these 
allegations, show that Petitioner performed tasks during Secretary Edmisten"s administration that were later determined to 
be improper. No evidence was presented that would establish specific information that Petitioner revealed to the auditors, 
to even determine if the information was protected. In addition, no evidence was presented that would establish that 
Petitioner's participation in the audits was a factor in the decision to RIF his securities examiner position. 

Political Discrimination 

11. In regards to the Political Discrimination claim, federal decisions are referred to for guidance in establishing evidentiary 
standards and principles of law to be followed in State discrimination cases. Dep 't of Correction v. Gibson, 308 N.C. 131, 
136. 301 S.E.2d 78, 82 (1983). Under federal law. in order to establish a prima facie case of political affiliation 
discrimination. Petitioner must show that his political affiliation was the substantial and motivating factor in making the RIF 
decision. Branti v. Finkel. 445 U.S. 507 (1980). 

12. Petitioner presented no evidence that would establish that his support for Mr. Petty in his bid for the Secretary of State 
position affected or influenced Respondent in anv manner in making the decision to RIF his securities examiner position. 
The substantial or motivating factor in making the decision to eliminate the securities examiner position was the adoption 
of NSMIA and the effect that its adoption had on Petitioner's legitimate job duties. 

Priority Re-employment Rights 

13. The law and related regulations grant RIF employees priority re-employment rights. Under the law. if a RIF employee applies 
for a State position that would be a promotion from his or her RIF position and has substantially equal qualifications as an 
applicant that is not a State employee, the RIF employee is to be considered over the non-State employee. If the RIF 
emplovee applies for a State position that is equal or lower to the salary grade of the position eliminated by the RIF and is 
determined to be qualified for the position, the employee shall receive priority consideration over all applicants that are not 
State employees. No priority rights exist if all applicants for the position are State emplovees. unless the RlFed employee 
has more than 10 years of state service and the other State emplovee has less than 10 vears of state service. The RIFed 
employee shall receive equal consideration among State employees. The priority re-employment rights extend for twelve 
months from the date that the employee is notified of the RIF. N.C. Gen. Stat. §126-7.1 (1997). 

14. The North Carolina Administrative Rules do not require that either the Respondent or the Office of State Personnel notify 
the Petitioner about every job vacancy that occurs during his one \ear priority re-employment status. 

15. Petitioner did not establish that his priority re-emplovment rights were violated. There was no evidence presented that 
Petitioner had ten \ears or more of State service which would have given him priority over any State employees with less 
than ten years of State Service. Petitioner presented e\idence that he applied and interviewed for one position with the 
Secretary of State's office during the priority re-employment period (from October 1996 through October 1997). However, 
no evidence was presented that would establish: (a) Petitioner's salarv grade (or the grade of the securities examiner position), 
(b) the salary grade of the position applied for. (c) whether an\ applicants were not State emplovees. (d) that the position 
was tilled b\ an individual that was not a State employee, (e) that Petitioner was qualified for the position, or (f) that the 
position was filled. In addition, no evidence, such as that which was just enumerated, was presented regarding any other 



348 NORTH CAROLINA REGISTER August 3, 1998 13:3 



CONTESTED CASE DECISIONS 



positions that were available with Respondent during the priority re-employment period. 

RECOMIMENDED DECISION 

It is recommended that the State Personnel Commission: 

A. Affirm. Respondent's decision to eliminate Petitioner's securities examiner position through a RIF as proper procedures were 
followed by Respondent in eliminating the position and Petitioner's retaliation and political discrimination claims are 
unfounded; 

B. Dismiss Petitioner's claims regarding priorit\' re-employment rights as no evidence was presented that would establish that 
his priority re-employment rights were violated by Respondent. 

ORDER 

It is ordered that the agency, serve a copy of the Final Decision on the Office of Administrative Hearings, P.O. Drawer 
27447, Raleigh. NC 2761 1-7447. in accordance with N.C. Gen. Stat. § 150B-36(b). 

NOTICE 

Before the agency makes the FFNAL DECISION, it is required by N.C. Gen. Stat. § 1 50B-36(a) that the agency give each 
party an opportunity to file exceptions to this RECOMMENDED DECISION, and to present written arguments to those in the agency 
who will make the final decision. 

The agency is required by N.C. Gen. Stat. § 1 50B-36{b) to serve a copy of the FFNAL DECISION on all parties and to flunish 
a copy to the parties' attorneys of record. 

This the 6"' day of July, 1998. 



Brenda B. Becton. 
Administrative Law Judge 



13:3 NOR TH CAROLINA REGISTER A iigusi 3, 1 998 349 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF MECKLENBURG 



IN THE OFFICE OF 
ADMINISTRATIVE HEARINGS 

98 ABC 0382 



SOKHA HLOR RAMADNEH d/b/a 
TIC TOC GROCERY 
Petitioner, 



V. 



N.C. ABC COMMISSION 

AND NATURAL RESOURCES, DIVISION OF MATERNAL 

AND CHILD HEALTH, NUTRITION SERVICES SECTION 

Respondent. 




This matter came on for hearing on June 2. 1998 before Administrative Law Judge Dolores O. Smith in Charlotte. North 



Carolina. 

APPEARANCES 

Petitioner: J. Jerome Miller 

Attorney at Law 
723 S. Sharon Amity Road 
Charlotte. North Carolina 28211 
Attome) for Petitioner 

Respondent: LoRita Pinnix 

Assistant Counsel 

N.C. ABC Commission 

PO. Box 26687 

Raleigh, North Carolina 27611-6687 

Attorney for Respondent 

ISSUE 

1 . Did the Respondent err in rejecting the Petitioner's application for off-premises malt beverage permit and unfortified and 

fortified uine permits, based on the location being not a suitable place to hold ABC permits in that it is located within 50 feet of a 
church? 

STATUTE AND RULES IN ISSUE 

N.C. Gen. Stat. 18B-901(c)(5) 

Based upon careful consideration of the testimonv and evidence presented at the hearing, the documents and exhibits received 
into evidence, and the entire record in this proceeding, the undersigned makes the follow ing: 

FINDINGS OF FACT 

\. On June 1 1. 1997, Petitioner purchased a business known as Tic Toe Grocerv in Charlotte, North Carolina from Paul 

Williams who had owned and operated a store at that location for approximately 25 years. 



2. 



A srocerv /convenience store has been located at that site since the earlv 1930s. 



3. During the time Mr Williams owned and operated the store he held an off-premise malt beverage permit and unfortified and 

fortified wine permits. 



350 



NORTH CAROLINA REGISTER 



Augusts, 1998 



13:3 



CONTESTED CASE DECISIONS 



4. When Petitioner purchased the store he was given a temporary permit. 

5. On or about February' 1 1. 1998. the Petitioner purchased the real estate on which the store is located for the sum of $65,000. 

6. The Petitioner applied for permanent ABC permits and ALE Agent Nicole Gabriel was assigned to do the background check 
for the application. 

7. Agent Gabriel visited the site and noticed that the store was close to a church, the Church of God Holiness. 

8. The store faced one street and the church faced another but the backs of the buildings were close to each other. 

9. The back and side of the store as well as the side of the church are grassy areas which are accessible from the street. 

10. Agent Gabriel measured the distance with a rolling measuring device and determined that the distance between the back of 
the grocery store and the side/back of the church was appro.ximately 37 feet. 

11. N.C. Gen. Stat. 18B-90 1(c)(5) provides: 

(c) Factors in Issuing Permit. - Before issuing a permit, the Commission shall be satisfied that the applicant 

is a suitable person to hold an ABC permit and that the location is a suitable place to hold the permit for which he 
has applied. To be a suitable place, the establishment shall comply with all applicable building and fire codes. 
Other factors the Commission shall consider in determining whether the applicant and the business location are 
suitable are: 

(5) Whether the establishment is located within 50 feet of a church or public school or church school; 

12. The statute is silent as to whether the 50 feet distance should be measured from the front doors or from any other particular 
part of the building. 

13. Subsequently, members of the church were asked whether or not they had objections to the issuance of the permits. 

14. The church members conferred and, because they are averse to the use of alcohol, they determined that they would in fact 
pose objections. 

15. Wendell Mazingo, a Deacon of the Church of God Holiness testified that the church members had been ver\' fond of Paul 
Williams and had come to know "Mark," the Petitioner's husband of whom they are also quite fond. 

16. Although there has been litter on the propert\ of the store and the church. Deacon Mazingo believes that the litter is caused 
primarily from people who loiter about the community center which is across the street. 

17. The church members do not object to the store on any grounds other than they are opposed to the use of alcohol. 
Based on the above Findings of Fact, the undersigned makes the following: 

CONCLUSIONS OF LAW 

1 . The statute is silent as to the manner in which the 50 foot distance should be measured. If the 50 foot measurement is to be 

made from the nearest points on each building, the purpose of the statute might create abberent results. 

For example, in a large city, a permittee location ma\ face one street and a church may be behind it, facing the opposite 
street. The area behind each of these buildings ma\ be inaccessible and used only for alleyway purposes. Nevertheless, a 
measurement made from the nearest point to the nearest point could result in a measurement of less than 50 feet, although members 
of the public would in fact have to circumnavigate the entire block to get from front door to front door. 

Conversely, taking the 50 foot measurement from front door to front door could also result in an abberant situation. If the 
measurement from front door to front door is greater than 50 feet, but the properties abut each other with public access area in 
between, this could cause a disturbance to the church such that the statute contemplates avoiding. 



13:3 NOR TH CAROLINA REGISTER A itgust 3, 1 998 351 



CONTESTED CASE DECISIONS 



In the instant case the \ard area bet\\een the church and the permirtee location appear at the present time to be accessible 
to the public in \shat is an apparentK rural section of Charlotte. There is no evidence to indicate whether the church or the permittee 
owns the grass\ area between and around the two buildings. 

2. While each of these measurements could in various scenarios cause an inequitable result, there should be a set rule for the 

taking of the 50 fool measurement. 

The Petitioner has submitted no cases from this jurisdiction on the 50 foot rule. However, the Petitioner has submitted cases 
from other jurisdictions. For example, in Kroger Co. \. Michigan Liquor Control Commission . 366 Mich. 481(1 15) N.W. 2d. 377 
(1962) . the Court ruled that the distance should be measured along the center line of the street. Further, in the case of Wakefield . 
10 Alaska 599 ( 1945). the Court held that measurements should be from front door to front door. Also, in Hunt Club. Inc. y. Moberlv. 
407 S.W. 2d. 148 (Kentuck\ ). the court ruled that the measurement between the church and the license permises was to be taken on 
the street and not the shortest distance between the two rear portions of the building. 

LastK. in the New York Case of R, H. Masse\' and Co. v. Murray . 38 NYS 903 (1896), the Court ruled that the measurement 
should be made ""entrance to entrance." 

While none of these cases control in the instant matter, it is apparent that courts have struggled with the directions for taking 
the 50 foot measurement. 

After due and deliberate consideration on this issue, it appears to the undersigned that the appropriate measurement should 
be from front door to front door. In the instant case, there is no evidence to indicate what the measurement is from front door to front 
door. However, it appears from a \ ideo introduced as evidence that the measurement ma> ver>' likeK be greater than 50 feet. 

Based upon the abo\ e Conclusions of Law. the undersigned makes the follow ing: 

RECOMMENDATION 

1 . It is recommended that the ALE agent remeasure the premises from the front door of the licensed premises to the front door 
of the church. 

2. It is further recommended if this measurement is greater than 50 feet, the Petitioner's permits be issued. 

ORDER 

It is hereb> ordered that the agenc\ serve a cop\ of the Final Decision on the Office of Administrative Hearings, P.O. Drawer 
27747. Raleigh. N.C. 2761 1-7447. in accordance with North General Statute 150B-36(b). 

NOTICE 

The agencN making the Final Decision in this contested case is required to give each partv an opportunitv to file exceptions 
to this recommended decision and to present written arguments to those in the agency who will make the final decision. G.S. 150B- 
36(a). 

The agenc\ is required b\ G.S. 150B-36(b) to serve a cop> of the final decision on all parties and to furnish a cop\ to the 
parties" attome\ on record and to the Office of Administrative Hearings. 

The agencN that will make the final decision in this contested case is the North Carolina Alcoholic Beverage Control 
Commission. 

This the 29'" dav of June. 1998. 



Dolores O. Smith 
Administrative Law Judge 



352 NORTH CAROLINA REGISTER August 3, 1998 13:3 





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